Litigation in Kazakhstan
I have had the opportunity to interview lawyers from several countries that have historical ties to England. But I recently conducted my first interview with a lawyer from a non-Russian former Soviet Republic. I wasn’t sure how much litigation in Kazakhstan had in common with litigation in Russia, but I was curious if the similarities between the systems in those countries would remind me of the similarities among the world’s common law judiciaries. So I was excited to speak with Zhaniya Ussen, an attorney at Assistance Law Firm in Almaty, to learn about what litigation is like in Kazakhstan.
Why should you continue reading this post about litigation in Kazakhstan?
You’re considering investing in the country's prosperous oil industry.
You want to learn more about the Astana International Financial Center.
You want to know why some lawyers in Kazakhstan courts can wear a robe, but others cannot.
Zhaniya Ussen is an attorney at Assistance Law Firm in Almaty.
Can you tell me about the kinds of disputes you handle in your legal practice?
Our legal practice is oriented towards businesses and investors, and I could say that we mainly handle the following three large group of disputes.
The largest one is commercial disputes arising of breach of contract. These disputes are resolved through different ways, such as a pre-trial negotiation, mediation, and participative proceedings. Otherwise they go to court or arbitration.
The next group of disputes are employment disputes. For example, we handle matters such as:
wrongful termination;
deprivation of employment benefits;
disagreement with disciplinary charges;
incorrect performance assessments;
bullying and discrimination at workplace; and
improper handling of personal data.
One other group of disputes includes the following:
corporate disputes involving a company and its shareholder;
claims for infringement of IP rights; and
disputes with administrative bodies including, without limitation, the tax authorities, customs, or the officers responsible for executing court decisions.
What type of clients do you generally represent in disputes?
Our major clientele in dispute resolution are companies of different sizes, ranging from local SMEs to large multi-national businesses.
Besides Microsoft Office, what software do you use in your practice?
Microsoft Office and their applications are the prime technological instruments we frequently use. In addition to it, we use Google Workspace apps and our internal CRM for client intake, time keeping, project management, and contract management.
What books and websites do you use for legal research?
We use to the following resources in our legal research:
Legal acts and regulations;
Scientific and other commentaries to the above;
Court decisions;
Law review and observations of judgments, and decisions of courts and arbitration;
Multiple databases with data records and statistics;
Articles and publications in media;
Web sites of governmental authorities; and
Corporate websites and social media pages.
Here are some of the websites we use:
https://legalacts.egov.kz/
https://data.egov.kz/
https://dialog.egov.kz/
https://online.zakon.kz/
https://office.sud.kz/
https://e-zan.kz/
https://eup.kz/
https://adilet.zan.kz/rus
https://aisoip.adilet.gov.kz/cabinet/auth
https://dialog.egov.kz/blogs
https://www.gov.kz/memleket/entities/adilet?lang=ru;
https://aisoip.adilet.gov.kz/debtors
https://sud.gov.kz/rus/kategoriya/normativnye-postanovleniya-po-godam
https://sud.gov.kz/rus/legislation
https://sud.gov.kz/rus/content/npa
https://sud.gov.kz/rus/content/proekty-npa
Image credit: https://ru.wikipedia.org/wiki/Верховный_суд_Казахстана#/media/Файл:Верховный_суд_Казахстана_2017.jpg
Does Kazakhstan have specialized courts that only hear commercial cases?
Yes, in Kazakhstan we have such courts. These are called “Specialized Interdistrict Economic Courts” and they are within the Kazakhstan civil law court system.
Besides them, there is also a court in the Astana International Financial Center (the “AIFC”). The AIFC Court operates under common law principles and has jurisdiction over any commercial disputes arising between the AIFC’s participants, any commercial disputes relating to operations carried out in the AIFC and regulated by the law of the AIFC, and any commercial disputes transferred to the AIFC Court by agreement of the parties. The AIFC Court system is based on the norms and principles of English law.
At the time of filing of a complaint with the Kazakhstan civil law courts the parties are informed of their option to move the case to the AIFC Court or the International Arbitration Center (the “IAC”). This provides a greater degree of flexibility for the parties in terms of jurisdiction and venue selection for their dispute resolution.
Any civil or commercial disputes arising from certain transactions or contracts can be transferred to the AIFC Court or the IAC by agreement of the parties. Parties to commercial litigation may choose to move the case from a Kazakhstan civil law court to the AIFC Court or IAC for various reasons, including without limitation the following:
The AIFC Court provides flexibility in selecting the applicable law to apply;
The AIFC follows the precedent of its own prior decisions, as well as decisions made in other common law jurisdictions;
The AIFC Court panel of judges include experienced judges from common law jurisdictions;
The AIFC Court has a Small Claims Court for speedy resolution of claims for under $150,000;
The AIFC Court is independent from the judicial system of the Republic of Kazakhstan and final judgments of the AIFC Court are not subject to cassation proceedings at the Supreme Court of Kazakhstan; and
Decisions of the AIFC Court are fully enforceable within Kazakhstan, and – on a treaty or reciprocity basis - outside the country.
Do you electronically file pleadings with the court? Or must you send paper copies of them to the courthouse?
Yes, we make all filings electronically, unless the court instructs us otherwise. The AIFC court has one filing website and all of the other courts in Kazakhstan use another.
Who decides the facts in a commercial case? Is it a judge or a jury?
In Kazakhstan, a jury trial is available in criminal cases only. In a commercial case, the facts are decided, and the judgment is rendered, by a judge only.
Generally speaking, how many pages are the complaints or initial pleadings you see in your work?
Length of these documents range from as few as couple pages to several dozen, depending on the nature of a case, its circumstances, and complexity.
There is no statutory limitation on the minimum or maximum number of pages, and good lawyers are guided by their professional experience, knowledge, reasonable judgment, and intuition. Good documents are well-structured and clearly indicate all facts and evidence to support a prima facie case.
Generally speaking, how long does it take for a case to go from complaint to judgment?
In an average case, it takes around three to six months to get a judgment in the court of first instance. The judgment becomes final unless it is appealed within one month. The proceedings in the court of appeal could take several months more.
Generally speaking, how is evidence exchanged between the parties before trial? Do you get to interview the opposing witnesses before the trial?
Generally, all evidence shall be submitted by the parties to the court of first instance at the time the parties file a lawsuit.
The court then issues pre-trial minutes that set forth a plan for the submission and exchange of evidence. As one may be able to tell from its name, the pre-trial minutes are prepared before commencement of the trial stage. They are prepared by the parties and their attorneys, and sometimes with the involvement of a judge acting as a mediator. They reflect a plan for the disclosure, service ,and exchange of evidence which the parties intend to use to support their respective arguments.
One of the purposes that the pre-trial minutes serve is the amicable settlement of a dispute. The pre-trial minutes allow the parties to ascertain whether it is worth having a trial. Pursuant to data published by the Chairman of the Supreme Court of Kazakhstan, 80% of cases where the parties have made pre-trial minutes have resulted in an amicable settlement without trial. And it is expected that the Supreme Court or legislature will make a list of types of cases where the usage of pre-trial minutes is mandatory.
If a party does not cooperate in exchanging evidence, upon motion of the opposing party, the court may provide it with an order for the release of evidence. A party or another person holding the evidence sought shall send it directly to the court or release it to the requesting party. In a corporate dispute, evidence shall be obtained by the court only.
If a party is not releasing the evidence sought, the court deems that such evidence contains data that supports the arguments of the opposing party.
Generally, witnesses have to be interviewed in court. That is due to the concept that it is important for the court to immediately perceive the arguments and conduct direct examination of the evidence.
However, in exceptional circumstances, such as the expected departure of a witness abroad or a business trip to a remote location associated with the witness’s hardship to personally attend to the proceedings, such witness can be interviewed in front of a notary. This requires affirmative consent of the witness. Without that consent, a notary could only attest to the fact that the witness has been called on for the interview and failed to show up. A witness’s statement, attested to by a notary, will then be a subject of the court’s examination, with the parties and their attorneys given an opportunity to express their views on the statement presented.
If you win, does the other side reimburse your attorneys’ fees?
Yes, the Kazakhstan civil law court may grant a prevailing party’s motion for reimbursement of the attorneys’ fees. In commercial cases, however, the maximum amount that can be reimbursed shall not exceed ten percent of the award amount.
An award of costs, including attorney’s fees, in a trial before the AIFC Court, however, is at the discretion of the court and may be waived in the interest of justice.
Are the courts in Kazakhstan open to the public? Can ordinary people watch a commercial trial?
A commercial trial is generally open to the public. However, in certain cases, the hearing may be held in private. For example, in a case involving sensitive information, disclosure of which may be detrimental to a party, the court may grant the party’s motion and close the commercial trial to the public.
Do you believe that the courts in Kazakhstan have a particular strength for resolving commercial disputes?
The strength of Kazakh courts for resolving commercial disputes lies in availability of various specialized courts. We have commercial courts for disputes between businesses, companies, and sole proprietors. We also have administrative courts for disputes between businesses, companies, and sole proprietors, on one hand, and governmental bodies, on the other hand.
The major frustration associated with civil court judgments in Kazakhstan is their unpredictability. Unfortunately, it is not a rare situation when the judges from different courts render substantially different judgements in cases having similar factual circumstances. First instance court judges are not bound by decisions of judges from other localities. However, they would usually accept superior court decisions, if any, as guidance. Thus, the Supreme Court is in the process of introducing so-called “exemplary judgments,” which shall be prepared by the appellate courts and be used then as guidance for the first instance courts.
Another practice of the Kazakhstan civil courts that calls for improvement is that, when an appellate court revokes a judgment rendered by a first instance court, it sends it to the same first instance court for a new trial. Accordingly, it is possible for a case to go in circles multiple times. Under the Civil Code of Kazakhstan, the appellate court would take the case for its full review and decide the merits only upon two revocations of the first instance court judgement.
How often do you go to the courthouse?
I go to court several times a year. Sometimes, I am in court few times a week, and sometimes every other month.
Is there a specific article of clothing you need to wear there?
There are two types of individuals in Kazakhstan who can professionally represent clients in its courts. These are advocates, who are the members of local bar association, and legal advisors, who are the members of their respective chambers.
For the latter, there is no requirement for any robe or wig. For the advocates, there is a provision in the law which entitles them to wear an advocates’ robe at trial. The design of such robes would have to be approved by the Republic’s Bar Association. Until then, advocates are not permitted to wear anything special to the courthouse apart from a regular business style outfit.
In the AIFC Court, there is no requirement concerning the attorney’s attire.