The Institute of the Investment Ombudsman was established in 2014 to improve the country's investment climate. The main task is to ensure the protection of the rights and legitimate interests of investors on issues arising in the course of investment activities, and to make recommendations for their resolution in out-of-court and pre-trial procedures.
The legal status of the Investment Ombudsman is enshrined in Art. 314-317 of the Entrepreneurial Code of the Republic of Kazakhstan, activities are provided by the authorized investment body.
The activities of the Investment Ombudsman are regulated by the Resolution of the Government of the Republic of Kazakhstan dated December 26, 2015 No. 1069.
The Investment Ombudsman is an official appointed (determined) by the Government of the Republic of Kazakhstan, who is entrusted with the functions of assisting in protecting the rights and legitimate interests of investors.
In accordance with the Resolution of the Government of the Republic of Kazakhstan dated April 20, 2019 No. 216, the Prime Minister of the Republic of Kazakhstan was appointed the Investment Ombudsman.
The main functions of the Investment Ombudsman:
The Investment Ombudsman, if the issues of investors cannot be resolved in accordance with the legislation of the Republic of Kazakhstan, develops and submits recommendations for improving the legislation of the Republic of Kazakhstan to the Government of the Republic of Kazakhstan.
Rights and obligations of the investment ombudsman
1. The Investment Ombudsman has the right to:
The Commissioner for the Protection of the Rights of Entrepreneurs of Kazakhstan (Business Ombudsman) is appointed by the order of the President of the Republic of Kazakhstan and is accountable only to the President.
The legal status of the Commissioner for the Protection of the Rights of Entrepreneurs of Kazakhstan is determined by Articles 307-317 of the Entrepreneurial Code of the Republic of Kazakhstan.
The main functions of the Business Ombudsman include representing, ensuring, protecting the rights and legitimate interests of entrepreneurs and considering their appeals.
On February 24, 2020, by the order of the Head of State, Zhursunov Rustam Manarbekovich was appointed the Commissioner for the Protection of the Rights of Entrepreneurs of Kazakhstan.
The Business Ombudsman has the following powers:
The Department of Legal Protection of Entrepreneurs operates in the structure of the NCE to deal with complaints. All Regional Chambers of Entrepreneurs have similar subdivisions - departments of legal protection of entrepreneurs, in which legal experts work.
The Department is a key subdivision in the structure of the NCE for the protection of the rights and legitimate interests of business entities and is part of the Office of the Ombudsman for the Protection of the Rights of Entrepreneurs of Kazakhstan.
The department is the secretariat of the Council for the Protection of the Rights of Entrepreneurs and Anti-Corruption, which considers systemic problems of business and, based on the results of its meetings, sends recommendations to central government bodies.
Among the working methods of the Council and the Department, interaction with the General Prosecutor's Office and the Anti-Corruption Agency is important. The full legal analysis of the entrepreneur on the part of the NPP, the conclusions and the expected consequences, together with reference to the relevant legislative norms, provide a detailed consideration by the prosecutor's office and departments of the Anti-Corruption Agency of a particular problem.
Also, experts of the Department provide legal assistance to entrepreneurs up to assistance in drafting statements of claim (reviews).
The Atameken Arbitration Center was created in 2014 in the form of a non-profit organization - a private institution for resolving disputes between organizations of all forms of ownership in order to help businessmen to quickly and without damage to their reputation resolve disputes, while significantly saving on legal costs (state duty for legal entities is 3% of the amount of the claim, in the arbitration center - 2%).
The Arbitration Center maintains a register of arbitrators, from which the parties can independently choose an arbitrator to resolve their dispute. Also, the parties have the opportunity to choose any other specialist who can act as an arbiter.
The rules of the Atameken Arbitration Center provide for the simplest procedure for considering a dispute. For example, a meeting can be conducted via video conferencing. At the same time, on most issues, the parties themselves can determine the procedure for resolving the dispute. Moreover, due to the less formalism in the consideration of the dispute, the party to the dispute can independently defend its arguments, excluding the costs of the services of a representative or a lawyer.
The parties to the disputes that were resolved in the Arbitration Center are Kazakhstani companies, as well as companies from Belarus, Spain, China, Latvia, Moldova, Poland, Russia, USA, Uzbekistan.
In order to create a legal basis for citizens and legal entities to choose a method for resolving a dispute that has arisen, including without contacting the relevant state bodies, as well as in order to streamline the activities of persons involved in resolving conflict situations (mediators), on January 28, 2011, the Law was adopted Of the Republic of Kazakhstan "On mediation".
Mediation is an out-of-court method of resolving disputes, chosen by the parties on a voluntary basis, in order to achieve certain goals. The law is intended to ensure the regulation of public relations, contains norms defining general provisions, securing:
The Independent Court and the AIFC International Arbitration Center began their work in January 2018. The court hears commercial and civil disputes on the basis of the principles of English legal procedure in the official language of the AIFC - English.
Both institutions were created to resolve civil and commercial disputes arising both among the direct participants of the AIFC and any other persons who, for example, in writing, in a contract, prescribe a clause about going to the AIFC court or to the international arbitration center.
In accordance with the Constitutional Law of the Republic of Kazakhstan "On the Astana International Financial Center", the AIFC court has exclusive jurisdiction to consider disputes between the AIFC participants.
The President of the AIFC Court is Lord Harry Kenneth Wolfe. Lord Harry Kenneth Wolfe is an international arbitrator and mediator in financial law with extensive professional experience in the courts of England, Wales, Qatar and Hong Kong.
A legal advisory council has also been created at the AIFC, which includes representatives of such well-known international law firms as Baker McKenzie, Devonshires Solicitors, Hogan Lovells, Michelmores, Norton Rose Fulbright, White & Case, 3 Verulam Buildings.
The AIFC Court operates exclusively on the basis of law based on the principles of English law and the standards of leading international financial centers. More than 70% of all contracts in the world are concluded on the basis of English law. The rules and principles of the legal system of England and Wales help to create an attractive legal environment for investors, as well as create transparency in the resolution of disputes.
From July 1, 2021, in accordance with paragraph 3 of Article 102 of the Administrative Procedure Code of the Republic of Kazakhstan dated June 29, 2020 No. 350-VI (APPK), the specialized interdistrict administrative court of the city of Nur-Sultan considers claims of investors referred to in part 1-2 of Article 27 of the Civil Procedure Code of the Republic of Kazakhstan (CPC) on appealing administrative acts, administrative actions (inaction) of administrative bodies , officials.
From July 1, 2021, in accordance with paragraph 1-2 of Article 27 of the Code of Civil Procedure, the specialized interdistrict economic court of the city of Nur-Sultan is considering civil cases in investment disputes, except for cases within the jurisdiction of the specialized interdistrict administrative court of the city of Nur-Sultan, as well as claims of state bodies against investors associated with the investor's investment activities, with the participation of:
1) a foreign legal entity (its branch, representative office) carrying out entrepreneurial activity in the territory of the Republic of Kazakhstan;
2) a legal entity created with foreign participation in the manner prescribed by the legislation of the Republic of Kazakhstan, fifty or more percent of voting shares (stakes in the authorized capital) of which belong to a foreign investor;
3) investors in the presence of a concluded contract with the state for investment.
In accordance with the Law of the Republic of Kazakhstan dated June 29, 2020 No. 351-VI "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Administrative Procedural Legislation of the Republic of Kazakhstan" RK considered disputes of large investors as the first instance. Now all disputes over investment contracts and other agreements between the state and the investor will be considered in the administrative court, if it concerns actions, omissions, administrative acts and actions.
Other disputes arising from legal relations with the participation of the investor, not related to investment activities, as well as disputes with the participation of the investor, subject to consideration in simplified proceedings, are subject to the jurisdiction of the district (city) and equivalent courts in accordance with the jurisdiction established by Chapter 3 of the Code of Civil Procedure.
Judicial chambers for administrative cases have been established in the Supreme Court and regional courts. K.S. was appointed Chairman of the Judicial Collegium for Administrative Cases of the Supreme Court. Musin.
By the Decree of the President of the Republic of Kazakhstan dated January 26, 2021, No. 500, specialized interdistrict administrative courts were created.
The Law "On Arbitration" was adopted on April 8, 2016. The Law provides for bringing the norms of legislation in the field of arbitration in accordance with the international obligations of Kazakhstan, in particular, with the New York Convention "On the Recognition and Enforcement of Foreign Arbitral Awards" of 1958, European Convention "On Foreign Trade Arbitration" 1961.
Prior to the adoption of the Law, there were two forms of out-of-court settlement of disputes arising from civil legal relations, which were carried out by international arbitration tribunals and courts of arbitration. The activities of international arbitration were regulated by the law on international arbitration, and the arbitration court - by the law on arbitration courts.
The main changes and innovations in the Arbitration Law include the following: