Introduction

Kazakhstan’s Administrative Procedure and Process-Related Code (the “APPC”) will enter into force on 1 July 2021. As soon as the APPC becomes effective, disputes arising out of public relations will be heard by the courts under the rules of the APPC with the exception of disputes falling within the competence of the Constitutional Council and disputes resolution of which is governed by the rules of criminal procedure, civil procedure and administrative offenses.

APPC will replace the provisions of Chapters 27, 28, 29 of the Civil Procedure Code (the “CPC”) which govern special action proceedings arising out of public law relations in the area of state governance, and these CPC Chapters will be repealed upon APPC’s entry into force.

As a result of significant innovations introduced into the administrative procedure rules by the APPC, the judicial dispute resolution mechanism will change remarkably.

From the effective date of the APPC, disputes involving investors arising out of public law relations will be heard by the courts according to the rules of the APPC. The rules of the CPC will apply to disputes involving investors and state bodies that do not arise out of public law relations, except for disputes on legality of regulatory legal acts, which will be heard pursuant to the CPC.

Aside from the latter category, it is the legal nature of a dispute (either a civil law dispute or a public law dispute) which will determine the applicable procedure, the rules of the CPC or the APPC.

CPC and APPC differ significantly in their regulation of a number of procedural aspects such as burden of proof, limitation period, procedural timeframes for filing appeals or cassation appeals, etc.

Such considerable differences require that clear and precise criteria be in place in order to determine a category of a dispute and the applicable resolution procedure between (i) investment disputes considered under the CPC rules; and (ii) investors’ claims appealing the acts or actions of administrative bodies that are considered under the APPC’s rules.

In this article, we set forth our analysis of the legislative distinction between disputes involving investors, the position of the Supreme Court on this issue and discuss possible “grey” areas caused by this divide with proposals for improvement.