ISSUES OF DETERMINING THE LAW APPLICABLE TO THE MERITS OF THE DISPUTE IN ARBITRATION UNDER THE LAWS OF THE REPUBLIC OF KAZAKHSTAN

Authors

  • Kulyash Muratovna Ilyasova

Keywords:

arbitration, civil law relations complicated by a foreign element,, civil law relations complicated by a foreign element, applicable law, autonomy of will of the parties, conflict of laws rules, public policy, superimperial rules, form of transaction

Abstract

The article deals with the issues of determining the applicable law when arbitrators resolve disputes arising from civil law relations complicated by a foreign element in accordance with the provisions of Kazakh legislation. It is substantiated that the methods of determining the applicable law depend on the method of regulating civil-law relations complicated by a foreign element. Cases that exclude the application of foreign law, including on the basis of a public policy reservation, in the application of peremptory norms are also considered.

The article substantiates that civil law relations complicated by a foreign element may arise between individuals and/or legal entities of the Republic of Kazakhstan. In this regard, the provisions of Article 44 of the Law of the Republic of Kazakhstan "On Arbitration" on the application of Kazakh law when considering a dispute between the said persons are critically evaluated.

The article notes the special place of international treaties and customs in the resolution of disputes in arbitration. In this regard, attention is drawn to the problem of determining the priority of the provisions of international treaties to which Kazakhstan has acceded by Presidential Decrees that do not have the force of the Act.   

With regard to the question of whether the applicable law is applicable at the time of conclusion of the contract, at the time of dispute resolution or at any other time determined by the parties, it is recognized that the answer to it may depend not only on whether the parties have agreed to such a point and whether there are legislative restrictions. It has been argued that the approach may also depend on what is the subject of the dispute.

 

Published

30.06.2020

How to Cite

Ilyasova . К. М. (2020). ISSUES OF DETERMINING THE LAW APPLICABLE TO THE MERITS OF THE DISPUTE IN ARBITRATION UNDER THE LAWS OF THE REPUBLIC OF KAZAKHSTAN. Scientific and Legal Journal «Bulletin of the Institute of Legislation and Legal Information of the Republic of Kazakhstan», 2(60). Retrieved from https://vestnik.zqai.kz/index.php/vestnik/article/view/194