Investment disputes: jurisdiction of the Supreme Court and the answers to other important questions
Who is the investor and what we mean by investment activities?
According to Article 274 of the Entrepreneurial Code of the Republic of Kazakhstanan, an investor is any natural or legal person carrying out investments in the Republic of Kazakhstan.
The activities of individuals and entities (investors) to participate in the authorized capital of commercial organizations or on the creation or increase of fixed assets used for business activities, as well as for the implementation of the project of public-private partnership, including the concession project, are an investment activity.
Under the increase or creation of fixed assets it should be understood investments in fixed assets in the amount and terms stipulated by the terms of the investment contract, the subsoil use contract, the contract of public-private partnership, including the concession contract.
What is an investment argument?
By virtue of article 296 of the Entrepreneurial Code of the Republic of Kazakhstan an investment dispute is a dispute arising out of contractual obligations between investors, including major investors, and government agencies in connection with their investment activities.
What are the contractual obligations related to the investment activities of the investor?
These contractual obligations between investors and state bodies, which are formed in the form of investment contracts or other contracts for the implementation of the investment, including concession agreements and contracts of public-private partnership (a contract for the implementation of the investment).
This contract for the implementation of the investment may have a different name or no name, but should contain the main features: the object of the contract (investment object), the size of contributions, as well as all other material terms of the contract with regard to the type.
What is meant by the term "public body" under the consideration of investment disputes?
In order to ensure protection of the rights and interests of investors, the term "public body" shall mean the public authorities who have concluded contracts with investors not only on its own behalf, but on behalf of the Republic of Kazakhstan (in this regard to investment disputes also include disputes on contracts for subsoil use, the party of which is the Republic of Kazakhstan).
What arguments can be recognized as investment disputes?
The following types of disputes are investment disputes:
1) disputes arising from the conclusion, modification and termination of contracts for the implementation of investments;
2) disputes relating to the execution of the investor tax, customs, social, environmental and other obligations arising from the agreement on the implementation of the investment, including the disputing investors assessed under the amounts of the contract;
3) disputes on investor appeal of actions (inaction) of the state body in the course of verification of compliance with terms of the contract for the implementation of investments;
4) disputes related to the return of property given to the investor as a state in-kind grant or recovery of a public authority of its value in case of early termination of the contract on implementation of investments;
5) other disputes as for claims of investors, and for claims of state agencies related to the performance of the mutual obligations under the contract on the realization of investments.
What investment disputes are in the jurisdiction of the Supreme Court of the Republic of Kazakhstan for consideration by the rules of the court of first instance?
In accordance with subparagraph 2) of Article 28 of the Civil Procedure Code of the Republic of Kazakhstan, the Supreme Court shall consider and resolve, on the rules of the court of first instance, the civil cases on investment disputes, the party of which is a major investor.
According to Article 274 of the Entrepreneurial Code the major investor is a natural or legal person carrying out investments in the Republic of Kazakhstan in the amount of not less than two million of monthly calculation index.
In this regard, in the jurisdiction of the Supreme Court there are only the disputes relating to the performance of the mutual obligations under the contract to carry out investment, the parties of which is a major investor and the state body.
Upon presentation of the claim the plaintiff (the investor or the state body) must submit an investment agreement, which implies the obligation of the defendant, that is, the evidence confirming the status of a major investor.
What investment disputes are in the jurisdiction of the Court of Astana for review according to the rules of the court of first instance?
According to the norms of the Civil Procedure Code, the court of Astana shall consider and decide civil cases on investment disputes, the party of which are the investors with the amount of investment not less than two million times of monthly calculation index, as well as other disputes between investors and public authorities arising from the investment activity of the investor.
At the same time, other disputes are disputes concerning with:
1) the actions of state authorities, in violation of the rights and interests of investors, provided by the legislation of the Republic of Kazakhstan;
2) the actions of investors that violate the laws of the Republic of Kazakhstan in the sphere of investments.
An indicative list of such disputes:
- Disputes on the admission of the investor to the investment activities;
- Disputes on the recognition of illegal actions (inaction) of public officials who violate the rights of the investor (in the field of licensing, assessed tax, customs and other obligatory payments to the budget not related to a contract for the implementation of the investment);
- Disputes about collecting by the state body with the investor amounts of taxes and other obligatory payments to the budget, of customs duties, not related to a contract for the implementation of investments;
- Disputes on compulsory seizure of property of the investor (nationalization, requisition) for state needs and damages;
- Disputes relating to compensation for damage to an investor as a result of publication of acts by public authorities, which do not comply with the laws of the Republic of Kazakhstan;
- Other disputes between the government and investors, not related to the fulfillment of the obligations under the contract for the implementation of investments.
What disputes are in the jurisdiction of the district (city) courts and courts equal to them?
The disputes in the jurisdiction of district (city) and equivalent courts are as follows:
- Other disputes arising from legal relationships with investors, not related to investment activities. Such disputes are between workers and investors, corporate disputes involving investors; disputes arising out of tort liability of the investor, etc.
- Disputes involving investors to be considered in a simplified production.
Can you specify the details for payment of state duty when applying to the Supreme Court?
Beneficiary: "Management of public revenues by Yessil district of the Department of State Revenue of the city of Astana of State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan"
BCF 108 125
Bank of the recipient: SD "The Committee of the Treasury of the Ministry of Finance of RK"
The tax authority code: 6205
Code of payment: 911