COURT REPRESENTATION

Representation by appointment may be undertaken by advocates and legal consultants (members of chambers of legal consultants), by employees of legal entities in cases concerning those entities, by authorised representatives of trade unions and of organisations entitled to protect the interests of their members, and by one of several co-parties acting on the others' instructions. Simply issuing a power of attorney to an acquaintance without the requisite status is not enough — the court will not admit that person. Statutory representatives (parents, guardians and trustees) act without a power of attorney, producing documents evidencing their status.

Legal basisArts. 57, 58, 62 of the Civil Procedure Code of the RK; Art. 20 of the Law of the RK on Advocacy and Legal Assistance

Persons who are providing or have previously provided legal assistance to parties with opposing interests in the case may not act as representatives, nor may persons who have previously participated in the case as judge, prosecutor, expert, specialist, interpreter, witness or attesting witness, persons related to the judge, the prosecutor or other participants listed in the law, or persons who by reason of health or age are unable to act. If such a circumstance emerges, the representative is disqualified.

Legal basisArt. 59 of the Civil Procedure Code of the RK

A power of attorney from a legal entity is signed by its chief executive or another authorised person; a power of attorney from an individual must be notarised or certified under the equivalent procedure — at the place of work, study or residence, or at the medical organisation where the person is being treated. Powers of attorney may also be issued electronically and signed with an electronic digital signature through the relevant information systems. An advocate additionally produces a warrant issued in the prescribed form.

Legal basisArt. 61 of the Civil Procedure Code of the RK; Art. 167 of the Civil Code of the RK

Express authority is required to sign and file a statement of claim, to refer the case to arbitration, to waive claims in whole or in part, to admit a claim, to change the subject matter or grounds of a claim, to enter into a settlement agreement or a mediation settlement, to delegate authority, to appeal against a judicial act, to present an enforcement document for execution and to receive the property or money awarded. Without such wording the corresponding procedural step is invalid, which frequently results in the claim being left without consideration.

Legal basisArt. 60 of the Civil Procedure Code of the RK

A power of attorney executed abroad must be certified by a notary of the relevant state and legalised or apostilled where that state is a party to the Hague Convention 1961, and then translated into Kazakh or Russian, with the translator's signature notarised. Documents from states with which Kazakhstan has legal assistance treaties may be accepted without legalisation. An alternative is to have the power of attorney certified at a consular office of the Republic of Kazakhstan abroad.

Legal basisArt. 61 of the Civil Procedure Code of the RK; Hague Convention 1961; Consular Charter of the RK; legal assistance treaties

Foreign nationals, stateless persons and foreign organisations enjoy the same procedural rights and bear the same obligations as citizens and organisations of Kazakhstan. The Government may impose reciprocal restrictions in respect of persons from states that have introduced restrictions against Kazakhstan persons. Kazakhstan law does not provide for security for the defendant's costs to be required solely on the ground of a party's foreign status.

Legal basisArts. 472, 473 of the Civil Procedure Code of the RK

The right to practise as an advocate or a legal consultant in Kazakhstan is tied to obtaining that status under national law, so a foreign lawyer without such status will not be admitted as a representative by appointment in civil proceedings. In practice foreign law firms participate through local advocates or legal consultants while remaining advisers on the substance of the dispute. A separate regime applies in the AIFC Court, where lawyers entered on that court's register may appear.

Legal basisArt. 58 of the Civil Procedure Code of the RK; Law of the RK on Advocacy and Legal Assistance; AIFC acts

As a general rule a claim is brought at the defendant's location; in addition, the Kazakhstan courts have jurisdiction where the defendant holds property or a management body in the country, where the dispute arises from a contract to be performed in Kazakhstan, and in the other cases expressly provided for by the Civil Procedure Code. The parties may vary jurisdiction by agreement, save for cases of exclusive jurisdiction such as disputes over immovable property located in Kazakhstan. An arbitration clause, if invoked in time, leads to the claim being left without consideration.

Legal basisArts. 27, 30, 32, 466, 467 of the Civil Procedure Code of the RK

Service is effected in the manner provided for by the applicable international treaty: through central authorities under the Hague Service Convention 1965, under bilateral legal assistance treaties, or through diplomatic channels by way of letters of request. The procedure takes considerable time, which the court takes into account when fixing the timetable. Improper service on a foreign party is one of the most common grounds for setting a judgment aside and for refusing to recognise it abroad.

Legal basisArts. 469, 476 of the Civil Procedure Code of the RK; Hague Service Convention 1965; legal assistance treaties

The state duty on pecuniary claims is calculated as a percentage of the claim value and differs depending on whether the claimant is an individual or a legal entity; fixed rates in MCI apply to non-pecuniary claims. Certain claimants are exempt, in particular in claims for unpaid wages, maintenance and compensation for personal injury. Where the claim is withdrawn, a settlement is reached or the proceedings are discontinued, the duty paid is refunded in whole or in part.

Legal basisTax Code of the RK (state duty provisions); Arts. 104, 108 of the Civil Procedure Code of the RK

The court awards the successful party its costs of legal representation against the other party, but in pecuniary claims the award may not exceed the statutory percentage of the part of the claim upheld. The costs must be evidenced by the engagement contract, a statement of services rendered and proof of payment. The court may reduce the amount by reference to reasonableness and to the volume and complexity of the work actually done.

Legal basisArts. 109, 113 of the Civil Procedure Code of the RK

A pre-action procedure is mandatory where it is expressly provided for by law — for example in certain categories of dispute, including carriage — or by the contract between the parties. Failure to comply results in the claim being returned or left without consideration. In administrative proceedings against state bodies, a prior appeal to the superior authority is mandatory save in the cases expressly excepted.

Legal basisArts. 152, 279 of the Civil Procedure Code of the RK; Art. 91 of the Administrative Procedural Code of the RK

The general period for hearing a case at first instance is up to two months from completion of the preparation of the case for trial; shortened periods apply to certain categories of case, and in complex cases the period may be extended in the manner provided by the Civil Procedure Code. In cases involving foreign parties the period is in practice extended by the time needed to execute letters of request. Failure to observe the period is not in itself a ground for setting a judgment aside.

Legal basisArt. 183 of the Civil Procedure Code of the RK

The court order procedure is a simplified route for undisputed claims based on a notarised transaction, a written transaction, a debt acknowledged by the debtor, and the other cases listed exhaustively in the Civil Procedure Code. The order is issued without summoning the parties and is itself an enforcement document. The debtor may file objections within the prescribed period, whereupon the order is set aside and the claimant may bring proceedings in the ordinary way.

Legal basisCh. 13 of the Civil Procedure Code of the RK (Arts. 135–141)

Cases meeting the established criteria — in particular as to the value of the claim, or where the defendant admits the circumstances — are heard under the simplified procedure without summoning the parties, on the written evidence filed and within shortened periods. The parties may file documents within the periods fixed by the court, and judgment is given on the case file. On the application of a party or of the court's own motion the case may be transferred to the ordinary procedure where further evidence needs to be examined.

Legal basisCh. 14 of the Civil Procedure Code of the RK

An appeal against a first-instance judgment must be filed within one month of the judgment being given in final form, and for persons who did not attend the hearing, within one month of service of a copy on them. A petition for review in cassation is filed with the Supreme Court within six months of the judicial act entering into legal force. Time limits missed for valid reasons may be restored.

Legal basisArts. 403, 435 of the Civil Procedure Code of the RK

On the application of a participant in the case the court may attach the defendant's property and funds, prohibit the defendant from taking specified actions, prohibit third parties from transferring property to the defendant, suspend the sale of property and apply other measures proportionate to the claim. The application is considered on the day it is received, without notice to the parties. The court may require the claimant to provide counter-security, and the defendant may claim compensation for losses caused by the measures if the claim is ultimately dismissed.

Legal basisArts. 155–165 of the Civil Procedure Code of the RK

A foreign judgment is recognised and enforced where an international treaty so provides or on the basis of reciprocity; the creditor files a petition with the court at the debtor's location or the location of its property, enclosing a duly certified copy of the judgment, confirmation that it has entered into force and evidence of proper service on the debtor, together with translations. The petition may be filed within three years of the judgment entering into legal force. Recognition is refused where service was improper, where exclusive jurisdiction was infringed, where enforcement would be contrary to public policy, and on the other statutory grounds.

Legal basisCh. 55 of the Civil Procedure Code of the RK (Arts. 501–504); legal assistance treaties

Recognition and enforcement of foreign arbitral awards is governed by the New York Convention 1958 and by the Civil Procedure Code: the applicant files a petition with the original or a certified copy of the award and of the arbitration agreement, together with translations. The court does not review the merits and may refuse only on the grounds exhaustively listed in the Convention and the Code — invalidity of the agreement, improper notice, excess of the scope of the agreement, or conflict with public policy. Practice is generally favourable to enforcement.

Legal basisNew York Convention 1958; Chs. 20, 56 of the Civil Procedure Code of the RK; Law of the RK on Arbitration

An arbitration agreement is permitted for disputes arising out of civil law relations, save for categories expressly excluded from arbitrability; where a valid clause exists, the court leaves the claim without consideration provided a party invokes it before submitting its defence on the merits. The clause should clearly identify the arbitral institution, the seat, the language and the applicable law — vague wording is a frequent source of jurisdictional disputes. Additional requirements, including approvals in the prescribed cases, apply to disputes involving state bodies and quasi-public sector entities.

Legal basisLaw of the RK on Arbitration; Art. 279 of the Civil Procedure Code of the RK

Where foreign law applies, the court establishes the content of its rules in accordance with their official interpretation, practice of application and doctrine in the relevant state; it may seek assistance from the Ministry of Justice and other competent bodies or appoint experts. The parties may also submit materials evidencing the content of the rules, and in claims arising from business activity the court may place the burden of proof on the party relying on foreign law. If the content cannot be established, the law of Kazakhstan applies.

Legal basisArt. 1086 of the Civil Code of the RK; Art. 13 of the Civil Procedure Code of the RK

Proceedings are conducted in Kazakh or Russian; documents in a foreign language are filed with a translation whose accuracy is notarised. Persons who do not speak the language of the proceedings are entitled to give explanations and address the court through an interpreter, whose participation is arranged by the court. Failure to provide a proper translation results in the application being left without progress.

Legal basisArts. 14, 79, 148 of the Civil Procedure Code of the RK

The general limitation period is three years; special shortened or extended periods apply to particular claims — for example one year for claims arising out of carriage and six months for certain challenges. Limitation is applied by the court only on the application of a party to the dispute made before judgment is given. Limitation does not apply to claims for the protection of personal non-property rights, to claims for compensation for harm to life and health (subject to a limit on recovery for the past) and to claims for the repayment of deposits.

Legal basisArts. 178, 179, 187 of the Civil Code of the RK

Such disputes are heard under administrative court procedure by the specialised administrative courts; as a general rule a prior appeal to the superior authority is mandatory, and the claim is filed within one month of service of the decision on that appeal. The procedure is built on the principle of the court's active role, and the burden of proving the lawfulness of the act rests on the state body. The court may grant interim protection by suspending the operation of the contested act.

Legal basisAdministrative Procedural Code of the RK (Arts. 91, 100, 136)

The defence of a suspect, an accused or a defendant is conducted by an advocate; alongside the advocate, a spouse, close relatives, statutory representatives and representatives of trade unions and other associations may be admitted in cases concerning their members. A foreign lawyer may be admitted only where an international treaty so provides. The participation of defence counsel is mandatory in the categories of case expressly listed in the law.

Legal basisArts. 66, 67 of the Criminal Procedure Code of the RK

Applications and documents are filed through the courts' information systems (the Judicial Cabinet), and participation in a hearing by videoconference is possible on the application of a participant where the technical facilities exist. Court notices may be sent electronically, including through a mobile application and by SMS with the participant's consent. Remote participation requires a valid electronic digital signature, which for a foreign party means obtaining an IIN or BIN and a digital signature in advance, or acting through a representative.

Legal basisArts. 133, 147 of the Civil Procedure Code of the RK; acts of the Supreme Court of the RK on electronic justice

The parties may conclude the case by a settlement agreement, by a mediation settlement agreement, or by a settlement reached in a participatory procedure with advocates or legal consultants acting for both sides. The agreement is approved by the court, the proceedings are discontinued, and the state duty paid is refunded in the established part. An approved agreement is enforceable in the same way as a judgment.

Legal basisCh. 17 of the Civil Procedure Code of the RK; Law of the RK on Mediation

An expert examination is ordered by the court on the application of a party or of its own motion where specialist knowledge is required; the parties may propose experts and formulate the questions. The expert's report has no predetermined weight and is assessed together with the other evidence. Where the report is insufficiently clear or reasoned, a supplementary examination is ordered, and where its correctness is in doubt, a repeat examination is entrusted to a different expert.

Legal basisArts. 43, 91, 92 of the Civil Procedure Code of the RK; Law of the RK on Forensic Expert Activity

A writ of execution is issued on the basis of a judgment that has entered into legal force and is presented to a private or state court enforcement officer; the general period for presentation is three years. The enforcement officer may attach property and bank accounts, levy execution on income, and impose temporary restrictions on the debtor's departure from the country and on the disposal of property. The enforcement officer's acts and omissions may be challenged before the court that issued the enforcement document.

Legal basisLaw of the RK on Enforcement Proceedings and the Status of Court Enforcement Officers; Arts. 240, 250 of the Civil Procedure Code of the RK

A challenge must be made with reasons before the hearing on the merits begins or, where the grounds come to light later, immediately upon their discovery. The grounds include the judge's earlier participation in the case in another procedural capacity, family ties with participants in the proceedings, a direct or indirect personal interest, and other circumstances casting doubt on the judge's impartiality. The challenge is determined in the manner prescribed by the Civil Procedure Code; unfounded challenges made to delay proceedings are dismissed.

Legal basisArts. 38–41 of the Civil Procedure Code of the RK