01 Feb 2022 | Category : News
Tukulov & Kassilgov Litigation and Seven Pillars Law are launching a “Knowledge Series” of articles on dispute resolution procedures in Kazakhstan.
Our first article offers insight into the judicial system in Kazakhstan. In particular, it describes the structure of the judicial system, qualification requirements for judges, and other general information that may be helpful to understand – what is the judicial system in Kazakhstan.
Generally, the legal system in Kazakhstan has two main components: the law-making and the law administration. In Kazakhstan, the law makers are represented by the Parliament, while the law administration is dealt with by the Government and the courts.
The judicial system has the distinct role in administering laws adopted in Kazakhstan. In particular, it is aimed at settling conflicts and disputes arising out of private or public relations, as well as at restoring infringed rights.
The judicial system of Kazakhstan consists of three tiers of courts:
a. the Cassation Court (the Supreme Court, a higher judicial body);
b. Appellate Courts (mid-level judicial bodies); and
c. Special District/General District Courts (lower judicial bodies).
The Supreme Court and Appellate Courts have their panels divided into the civil, criminal and administrative categories of cases, as opposed to Special District/General Courts.
There is also the Court of Astana International Financial Center (the “AIFC Court”), which operates independently and does not form a part the judicial system of Kazakhstan.
Furthermore, there are arbitration courts in Kazakhstan, that are also not treated as part of the judicial system of Kazakhstan.
It is worth noting that all decisions of the AIFC Court as well as awards of arbitration courts are recognised and enforceable in Kazakhstan equally with the decisions of courts forming a part of the judicial system.
a. Cassation Court (Supreme Court)
The Supreme Court is the highest judicial body for civil, criminal, administrative and other cases that fall under the jurisdiction of special district/general courts. The Supreme Court may revise a decision of an appellate court or a special district/general court pursuant to a cassation petition filed.
The other functions of the Supreme Court include the supervision over the activities of lower courts for compliance within the procedural rules established by the Kazakhstan laws, and the provision of clarifications concerning judicial practice.
It should be noted that clarifications on the judicial practice may be given in the form of a regulatory resolution. Such resolutions are deemed to be one of the sources of law.
The clarifications may also be given by the Supreme Court in form of an explanatory statement. Such statements fall outside the sources of law and have the advisory nature.
The bodies of the Supreme Court are as follows:
1. the plenary session (the supreme organisational body);
2. the panel for civil cases;
3. the panel for criminal cases; and
4. the panel for administrative cases.
The Supreme Court consists of the Chairman of the Supreme Court, Chairmen of the panels, as well as judges who are appointed on a competition basis. The Chairman of the Supreme Court is elected for a five-year term by the Senate pursuant to a proposal of the President of Kazakhstan based on recommendations of the Supreme Judicial Council. As for judges of the Supreme Court, they are elected by the Senate pursuant to a proposal of the President of Kazakhstan based on recommendations of the Supreme Judicial Council.
Apart from the basic requirements such as legal education, passing the qualification exam, etc., the minimum requirements to a judge of the Supreme Court include at least 20-year professional experience in legal positions, including 10 years of experience as a judge.
Please note that the President of Kazakhstan has the right to nominate a judge to the Supreme Court through the single-source selection ignoring the aforementioned requirements. From the practical point of view, such mechanism is aimed at attracting candidates from the private sector: law firms, advocates, etc. For instance, in 2021 the President of Kazakhstan proposed one of the Big4 company partners to the position of a judge in the Supreme Court, who then was appointed as such.
b. Appellate Courts
Regional courts and courts equivalent thereto (the “regional courts”) are established, reorganised and abolished by the President of Kazakhstan pursuant to a proposal of the Chairman of the Supreme Court in agreement with the Supreme Judicial Council.
The Appellate Courts represent an appeal judicial body for civil, criminal and administrative cases.
The Appellate Courts consists of the Chairman of the Appellate Court, Chairmen of the panels as well as judges who are appointed on a competition basis.
Apart from the basic requirements such as legal education, passing the qualification exam, etc., the minimum requirements to a judge of the Appellate Court include at least 15-year professional experience in legal positions, including 5 years of experience as a judge.
c. Special District/General District Courts
Special District/General District Courts are treated as courts of first instance. These courts are at the start of the judicial system hierarchy in Kazakhstan.
Special District Courts review the specific categories of cases: commercial, administrative, criminal, etc.
General District Courts review all the other cases which fall outside the competence of Special District Courts.
From the practical point of view, corporate disputes in Kazakhstan are mostly examined by Special Commercial District Courts (“SCDCs”).
With effect from July 2021, the judicial system in Kazakhstan introduced a new type of a Special District Courts – a Special Administrative District Court (“SADC”). The SADCs examine cases involving disputes with the governmental bodies. For instance, tax disputes with the tax authorities, a dispute in relation to customs duties, appeals against court decisions, actions (inaction) of governmental bodies, etc.
Judges of Special District/General District Courts must have the legal education, at least five-year experience in legal positions, and should pass the required exams.
In 2008, the Astana International Financial Center (“AIFC”) got off the ground in Kazakhstan. The AIFC is located in Nur-Sultan City and is set up as a financial hub for the countries of Central Asia, the Caucasus, the Eurasian Economic Union, Western China, Europe, etc.
As mentioned above, the AIFC Court operates on the territory of the AIFC being separate and independent from the Kazakhstan judicial system.
The AIFC Court represents the common law judicial system in Kazakhstan to resolve civil and commercial disputes.
The AIFC Court is established as an independent legal entity on the AIFC territory pursuant to the AIFC Constitutional Statute.
It examines the following types of the cases: any and all claims arising out of, and in connection with, the AIFC and its operations, claims in which the parties agree to the jurisdiction of the AIFC Court, if a contract is governed by the AIFC law, disputes related to transactions effected on the territory of the AIFC.
As noted above, decisions of the AIFC Court are enforceable in Kazakhstan.
For more details on the AIFC Court please click here
Arbitral tribunals are not considered as part of the judicial system of Kazakhstan. Nonetheless, the parties to a dispute may agree to the jurisdiction of the arbitration created in Kazakhstan.
Arbitrations in Kazakhstan may be established as:
a permanent arbitral institution; or
an arbitral tribunal for resolving a certain dispute.
A permanent arbitral institution should have in place the approved by it rules of arbitration, a register of arbitrators who will be engaged to work within this arbitration. According to the registry of permanent arbitral institutions, there are 17 permanent arbitrations in Kazakhstan. We note the following highly reputed permanent arbitrations, among others: the Kazakhstan International Arbitrage, the Arbitration Center of the National Chamber of Entrepreneurs Atameken.
As for an arbitral tribunal for resolving a certain dispute, such tribunals may be established by the parties to resolve a dispute between them, such arbitration being operative until the dispute is resolved or unless the parties decide to submit the dispute to a court.
There is also the AIFC International Arbitration Court which is located within the AIFC.
Awards of Kazakhstan arbitral tribunals are enforceable in Kazakhstan, as specified above.
We note that this article is of a general nature. The aim of this article is to provide the audience with the general information in respect of the judicial system in Kazakhstan.
The following articles of “Knowledge Series” are expected to cover different topics in respect of litigation procedures, including the description of the most challenging cases from our practice.
Applicable legislative acts:
Authors: Aybek Kambaliyev, Ravil Kassilgov (Tukulov & Kassilgov Litigation) and Yan Tkachev (Seven Pillars Law)