ISSUES OF ALTERNATIVE DISPUTE RESOLUTION UNDER SUBSURFACE USE CONTRACTS
Keywords:
Alternative dispute resolution, subsoil use contracts, arbitration, mediation, conversationAbstract
Based on an analysis of the legislation of the Republic of Kazakhstan, at various stages of development, the author examines questions about alternative methods for resolving disputes arising from subsurface use contracts.
In particular, the author is considering whether the above procedure for concluding an arbitration agreement applies to disputes arising from subsoil use contracts. Based on a study of the provisions of the legislation of the Republic of Kazakhstan, the author believes that disputes arising from subsurface use contracts can be referred to arbitration in the presence of an arbitration agreement concluded by the parties.
The author also considers the question of the permissibility of mediation in disputes, of which the state is one of the parties. According to the results of the study, the author considers it appropriate to establish a direct ban on the application of mediation to disputes arising from civil law relations involving the state in order to avoid ambiguous interpretation of the provisions of the legislation on mediation.
In addition to the arbitration order and mediation, the article also explores other methods of dispute settlement provided for by the legislation of the Republic of Kazakhstan, which, although applied in the framework of court proceedings, cannot be referred to the judicial method of resolving a dispute. Thus, the author refers to other methods of dispute settlement a participatory procedure, which is used in the framework of the trial.
The subject of the study was also negotiations as a way to resolve disputes. In particular, the author believes that the negotiations that must be carried out in accordance with the terms of the subsoil use contracts, in addition to presenting a notice of violation of the obligation and requirements for the fulfillment of the obligation and (or) holding to account, imply objection by the party to which such claims are presented, expression by the other party of disagreement with such objections or failure to respond to such objections. In this case, the author indicates that the unilateral sending by the competent authority of a notification of violation is not a way to resolve the dispute through negotiations.
Based on the results of the study, the author concludes that the legislation of the Republic of Kazakhstan on the issues of applying ARS to resolve (resolve) disputes arising from subsurface use contracts is inconsistent and ambiguous, and also summarizes that for the development of ARS in this area, it is necessary to improve not only legislation, but also law enforcement practice.