General Provisions
Article 501 of the Civil Procedure Code of the Republic of Kazakhstan stipulates that decisions, orders and rulings on approval of settlement agreements, court orders of foreign courts are recognized and enforced by the courts of the Republic of Kazakhstan if the recognition and enforcement of such acts are provided for by law and (or) an international treaty ratified by the Republic of Kazakhstan, or on the basis of reciprocity.
If the above-mentioned judicial acts are not executed voluntarily within the time limits specified therein, the party to the trial in whose favor these acts were issued has the right to apply for their compulsory execution to the court at the place of consideration of the dispute or at the place of residence of the debtor or at the location of the body of the legal entity, if the place of residence or location is unknown, then at the location of the debtor’s property.
Applications for the issuance of a writ of execution shall be accompanied by duly certified original judicial acts or duly certified copies thereof, and, if available, an original arbitration agreement or a duly certified copy thereof. If the said acts or arbitration agreements are set out in a foreign language, the party must submit a duly certified translation thereof into Kazakh or Russian.
When considering applications for the issuance of a writ of execution for the compulsory execution of judicial acts, the court shall not have the right to review them on the merits.
Following the consideration of the application, the court shall issue a ruling on the issuance of a writ of execution or on the refusal to issue it.
The court’s ruling on the issuance of a writ of execution shall be subject to immediate execution.
At the same time, when recognizing and enforcing foreign court decisions in Kazakhstan, it is necessary to be guided by the norms of international agreements to which Kazakhstan is a party.
Thus, when recognizing and enforcing in Kazakhstan court decisions issued by courts of some CIS countries, including the Russian Federation, it is necessary to apply the provisions of the Agreement on the Procedure for Resolving Disputes Related to the Implementation of Economic Activities, adopted in Kyiv on 20.03.1992 (for economic disputes between legal entities and individual entrepreneurs) (hereinafter referred to as the Agreement), the provisions of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases, adopted in Minsk on 22.01.1993 (hereinafter referred to as the Minsk Convention) (for disputes in civil, family and criminal cases) and the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases, adopted in Chisinau on 7.10.2002 (hereinafter referred to as the Chisinau Convention) (for disputes in civil, family and criminal cases). Kazakhstan also has bilateral agreements on mutual legal assistance in civil matters with Vietnam, Italy, Mongolia, Pakistan, Georgia, Turkey, China, the DPRK, India and the UAE.
List of documents required to file a petition with the court for recognition and enforcement of judicial acts in civil, family and criminal cases (except for commercial disputes).
Article 53 of the Minsk Convention provides that a petition for permission to enforce a decision is filed with the competent court of the Contracting Party where the decision is subject to enforcement. It may also be filed with the court that issued the decision on the case in the first instance. This court forwards the petition to the court competent to issue a decision on the petition.
The following documents shall be attached to the petition:
a) the decision or a certified copy thereof, as well as an official document stating that the decision has entered into legal force and is subject to execution, or that it is subject to execution before it enters into legal force, unless this follows from the decision itself;
b) a document stating that the party against whom the decision was rendered, who did not participate in the proceedings, was duly and promptly summoned to court, and in the event of its procedural incapacity, was duly represented;
c) a document confirming partial execution of the decision at the time of its transmission;
d) a document confirming the agreement of the parties on cases of contractual jurisdiction.
The petition for permission to enforce the decision and the documents attached thereto shall be provided with a certified translation into the language of the requested Contracting Party or into Russian.
List of documents required to file a petition for recognition and enforcement of judicial acts (in economic disputes).
Article 7 of the Agreement on the procedure for resolving disputes related to the implementation of economic activities provides that decisions made by a competent court of one state – member of the Commonwealth of Independent States in terms of foreclosure on the defendant’s property are subject to enforcement in the territory of another state – member of the Commonwealth of Independent States by bodies appointed by the court or determined by the legislation of that state.
Article 8 of the said Agreement provides that the enforcement of the decision is carried out at the request of the interested Party.
The following documents shall be attached to the petition:
a duly certified copy of the decision, for the enforcement of which the petition is filed;
an official document stating that the decision has entered into legal force, if this is not evident from the text of the decision itself;
proof of notification of the other Party of the process;
an enforcement document.
The parties to this Agreement are Armenia, Belarus, Kazakhstan, the Kyrgyz Republic, Tajikistan, Turkmenistan, the Russian Federation, Uzbekistan, and Ukraine.
As follows from the Decision of the Economic Court of the Commonwealth of Independent States dated February 21, 2007 No. 01-1/2-06 “On the interpretation of Articles 5, 7 of the Agreement on the procedure for resolving disputes related to the implementation of economic activities, dated March 20, 1992, Articles 5, 17, 51, 54 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases dated January 22, 1993 and Articles 5, 17, 54, 57 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases dated October 7, 2002”, the states parties to this Agreement have undertaken the obligation to mutually recognize and enforce decisions of competent courts that have entered into legal force (Article 7 of the Agreement). This provision, taking into account the norm of Article 8 of the Agreement, allows the interested party (creditor) to send a petition for the enforcement of a court decision directly to the body authorized to enforce it in accordance with the legislation of the requested state without conducting a special procedure for recognizing a foreign court decision in court. In this case, the writ of execution issued by the foreign court and other documents specified in Article 8 of the Agreement are attached to the petition.
Court proceedings on the case may be initiated only upon a petition to refuse to enforce the decision, filed by the party against whom the decision was made.
The list of grounds for refusal is exhaustive and does not affect the essence of the decision made (Article 9).
Thus, based on the interpretation of the provisions of the said international treaties by the CIS Economic Court, in order to enforce decisions of the courts of the countries participating in this Agreement on economic disputes, there is no need to apply to the judicial institutions of the state in which it is necessary to enforce the court decision with an application for recognition and enforcement of the decision of a foreign court, but it is sufficient to apply directly to the body carrying out enforcement proceedings.
At the same time, the judicial practice of the Republic of Kazakhstan shows that creditors, nevertheless, apply to the judicial bodies of the Republic of Kazakhstan with applications for recognition and enforcement of court decisions on economic cases issued by the courts of the countries participating in the Agreement, and the courts of Kazakhstan accept such cases for proceedings and consider them with the issuance of a corresponding ruling on the recognition and enforcement of the decision of such a foreign court, or on the refusal to do so, while, in fact, ignoring the provisions of the Decision of the CIS Economic Court (see, for example, the ruling of the appellate judicial panel for civil and administrative cases of the Astana city court dated September 4, 2015 in case No. 2a-4157, the ruling of the appellate judicial panel of the Almaty city court dated April 4, 2012 in case No. 2A-2075/2012, the ruling of the appellate judicial panel for civil and administrative cases of the Astana city court dated December 12, 2012 in case No. 2a-4859-12 and others).
Grounds for refusal to recognize and enforce decisions of foreign courts of the CIS countries, including Russian courts, in Kazakhstan (in civil, family and criminal cases)
Article 55 of the Minsk Convention provides grounds for refusal to recognize and enforce decisions of foreign courts in civil, family and criminal cases.
Thus, recognition of court decisions and permission for their enforcement may be refused in cases where:
a) in accordance with the legislation of the Contracting Party in whose territory the decision was made, it has not entered into legal force and is not subject to enforcement, except for cases where the decision is subject to enforcement before it enters into legal force;
b) the defendant did not take part in the proceedings due to the fact that he or his authorized representative was not promptly and properly served with a summons to court;
c) in a case between the same parties, on the same subject matter and on the same grounds, in the territory of the Contracting Party where the decision is to be recognized and enforced, a decision that has entered into legal force has already been rendered or there is a recognized decision of a court of a third state, or if the institution of this Contracting Party has previously initiated proceedings in this case;
d) in accordance with the provisions of this Convention, and in cases not provided for by it, in accordance with the legislation of the Contracting Party in the territory of which the decision is to be recognized and enforced, the case falls within the exclusive competence of its institution;
d) there is no document confirming the agreement of the parties to the case on contractual jurisdiction;
e) the limitation period for compulsory execution provided for by the legislation of the Contracting Party whose court executes the orders has expired.
Grounds for refusal to recognize and enforce decisions of foreign courts of the CIS countries, including Russian courts, in Kazakhstan (on economic disputes)
Article 9 of the Agreement on the procedure for resolving disputes related to the implementation of economic activities provides grounds for refusal to recognize and enforce decisions of foreign courts issued on economic disputes.
Thus, recognition of court decisions and issuance of permission for their enforcement may be refused in cases where:
a) the court of the requested state – a member of the Commonwealth of Independent States has previously issued a decision that has entered into legal force on a case between the same Parties, on the same subject and on the same grounds;
b) there is a recognized decision of a competent court of a third state – a member of the Commonwealth of Independent States or a state that is not a member of the Commonwealth, on a dispute between the same Parties, on the same subject and on the same grounds;
c) the dispute under this Agreement has been resolved by an incompetent court;
d) the other Party has not been notified of the process;
d) the three-year limitation period for presenting the decision for compulsory execution has expired.
The amount of state duty payable when filing a petition to the court for recognition and enforcement of a foreign court decision (regardless of the type of dispute)
According to paragraph 11 of Article 535 of the Tax Code of the Republic of Kazakhstan, the rate of state duty on applications for the issuance of writs of execution for the enforcement of arbitration and foreign court decisions is 500 percent of the monthly calculation index (MCI), which is 5 MCI. For 2017, the MCI established by Kazakhstan is 2,269 tenge (411 Russian rubles), therefore, the amount of state duty payable when filing such an application (petition) in 2017 is 11,345 tenge (2,053 rubles).
Thus, a decision on a commercial dispute issued by a court of a state party to the Agreement of 20 March 1992 is enforced in the territory of another state party without the procedure for its recognition in court on the basis of a petition sent by the interested party to the body authorized to carry out enforcement under the legislation of the state in whose territory enforcement is requested (Articles 7, 8 of the Agreement). Court proceedings to refuse to enforce a decision may be initiated only upon a petition filed by the party against whom the decision was made (Article 9 of the Agreement). Recognition of a foreign court decision by conducting an appropriate judicial procedure as a condition for its enforcement is required in relations between states parties to the Minsk Convention of 22 January 1993 (Articles 51, 54 of the Convention) in all cases where one or both states involved in the enforcement process are not parties to the Agreement of 20 March 1992 (see paragraphs 4 and 5 of the operative part of the Decision of the Economic Court of the Commonwealth of Independent States of 21 February 2007 N 01-1/2-06 “On the interpretation of Articles 5, 7 of the Agreement on the procedure for resolving disputes related to the implementation of economic activities, dated 20 March 1992, Articles 5, 17, 51, 54 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases dated 22 January 1993 and Articles 5, 17, 54, 57 of the Convention on legal assistance and legal relations in civil, family and criminal cases of October 7, 2002).
The SION & Partners law firm offers legal assistance in matters of recognition and enforcement of decisions of foreign, including Russian, courts in the Republic of Kazakhstan, as well as in matters of recognition and enforcement of decisions of Kazakh courts in Russia.