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Challenging and setting aside an arbitral award in Kazakhstan
An arbitral award cannot be appealed the way a state court judgment is appealed: there is no appeal on the merits. The Law "On Arbitration" leaves one route: an application to the court to set aside the award, filed within one month and only on the grounds in a closed list. The debtor has one more means of defence when the creditor asks the court to issue a writ of execution. Below we explain how both routes work, where and when to apply, and what happens after the award is set aside.
Can an arbitral award be appealed
A court cannot rehear the dispute, reassess the evidence or review the arbitrators' conclusions. The law expressly prohibits the court, when considering an application to set aside, from reviewing the arbitral award on the merits. In 2024 the Constitutional Court found this provision consistent with the Constitution.
The Rules of the Atameken Arbitration Center say the same: the award of the arbitral tribunal is final, and the parties may only apply to the competent court to set it aside, on the grounds and within the time limits established by the Law "On Arbitration". Therefore, what can be challenged is not whether the award is correct, but how and by whom it was made: whether the arbitral tribunal had the right to hear the dispute, whether the procedure was followed, and whether public policy was violated.
Within the arbitration itself the law provides other tools. Within 60 calendar days of receiving the award, a party may ask the tribunal to correct clerical errors and errors in calculation, to interpret the award, or to make an additional award on claims that were presented but left unanswered. The award may be reviewed on the basis of newly discovered circumstances, for example if a court sentence has established that evidence was forged or testimony was false. Under the Center's Rules, such an application must be filed within 1 month from the day the circumstances were established.
Is an arbitral award binding
Yes. The law recognizes an arbitral award as binding. It enters into force on the day it is signed by the arbitrators and must be complied with within the time stated in the award or, if no time is stated, immediately. If the debtor does not pay voluntarily, the creditor applies to the court for a writ of execution, and the award is enforced under the rules of enforcement proceedings. Additional costs of compulsory enforcement are borne by the party that failed to comply with the award voluntarily.
Enforcement of an arbitral award cannot be deferred or paid in instalments by order of a court: the Supreme Court has clarified that courts have no such powers in respect of arbitral awards.
Grounds for setting aside an arbitral award
The list is closed, and the Supreme Court has expressly stated that it may not be interpreted broadly. The grounds fall into two groups: some must be proved by the party applying to set aside the award, others the court examines on its own initiative, even if no one relies on them.
| Ground (Art. 52 of the Law "On Arbitration") | Who establishes it |
|---|---|
| The award deals with a matter not covered by the arbitration agreement or beyond its scope, or the dispute is not within the jurisdiction of arbitration | Proved by the party |
| A party to the agreement has been declared legally incapable by a court, or the arbitration agreement is invalid | Proved by the party |
| A party was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings, or was unable to present its explanations for a valid reason | Proved by the party |
| The composition of the arbitral tribunal or the procedure was not in accordance with the agreement of the parties (unless it conflicts with mandatory provisions of the law) or, failing such agreement, with the law | Proved by the party |
| In the same dispute between the same parties there is already a court or arbitral award that has entered into force, or a ruling terminating the proceedings because the claimant withdrew the claim | Proved by the party |
| The award conflicts with the public policy of the Republic of Kazakhstan | Examined by the court on its own initiative |
| Under the law, the dispute cannot be resolved by arbitration | Examined by the court on its own initiative |
If the decisions on matters covered by the agreement can be separated from the rest, the court sets aside only the part that goes beyond the scope of the agreement.
A breach of procedure does not always lead to setting aside: in each case the court decides whether the breach was material. The law defines public policy as the foundations of the legal order enshrined in legislation; the Supreme Court has clarified that it may be invoked only in exceptional cases.
Note: if a party knew of a breach, continued to take part in the proceedings and did not object in time, it loses the right to object and will not be able to rely on that breach in court. Under the Center's Rules, this time limit is 5 calendar days from the moment the party became aware of the breach. It is therefore advisable to raise objections immediately rather than after the award.
How to apply to set aside an award: steps and deadlines
- Check the deadline. The application must be filed within one month from the day the award was received. If an application for review on the basis of newly discovered circumstances was filed, the month runs from the day of the decision on that application. The court may restore a missed deadline if it finds the reasons valid; otherwise the application will be returned.
- Identify the court. The application is filed with the court of appeal at the place where the dispute was heard by the arbitral tribunal, if the award was made in Kazakhstan. For a permanent arbitral institution, the Supreme Court has clarified that this means the place where the institution is located.
- Prepare the application. State the grounds under Article 52 of the Law and attach evidence: the award, the arbitration agreement, documents on notification and other materials supporting your argument. The court may itself request the case file from the arbitral institution. Pay the state duty: 50% of the duty for filing a claim in court; in property disputes it is calculated on the amount being challenged (subparagraph 9 of paragraph 1 of Article 665 of the Tax Code of the Republic of Kazakhstan). Without the duty, the application will be returned. If a representative files the application, a power of attorney authorizing this action is required.
- Consideration. The application is considered by a panel of at least three judges of the court of appeal within ten working days of the opening of the case. The parties are notified of the hearing; the absence of a party that has been notified does not prevent consideration.
- Possible suspension. At the request of a party, the court may suspend the case so that the arbitral tribunal can resume the proceedings and remedy the breach. The Supreme Court has stated that such a period should not exceed three months.
- Outcome and appeal. The court issues a ruling setting aside the award or refusing to do so. A cassation appeal may be filed against it.
An application may be filed by the parties to the arbitration and by third parties who were not joined to the case but whose rights and obligations were decided by the arbitral tribunal.
What happens after the award is set aside
The court does not make a new decision on the merits. What happens next depends on the ground for setting aside. If the award was set aside for conflict with public policy, non-arbitrability, an invalid agreement or going beyond the scope of the agreement, a party may apply to a state court. In all other cases, the right to refer the dispute to arbitration under the existing agreement is preserved.
If the court has already issued a ruling on compulsory enforcement of the award, in its ruling on setting aside it also decides whether to cancel that enforcement ruling. Setting aside an arbitral award is also a new circumstance for reviewing the court act on its enforcement. If the award has already been enforced, there is no reversal of enforcement: what was paid or transferred can be recovered by a claim for unjust enrichment.
Under the Center's Rules, when a case is heard again after the award has been set aside by a court, the arbitration fee is not payable again if the dispute is heard by the same tribunal.
Refusal to issue a writ of execution as a means of defence
If the creditor applies to the court for a writ of execution, the debtor is notified of the hearing. The debtor may object: the court refuses to issue the writ if it establishes one of the grounds similar to the grounds for setting aside: an invalid agreement, going beyond its scope, improper notice, a breach in the composition of the tribunal or the procedure, an existing award in the same dispute, legal incapacity of a party, as well as conflict with public policy and non-arbitrability. A separate ground is that the award has not yet become binding, or has been set aside or suspended by a court of the country under whose law it was made. Here, too, the court has no right to review the award on the merits.
An application for a writ of execution is considered by a single judge within 15 working days. The creditor may file it within three years after the time limit for voluntary compliance expires. A ruling to issue the writ is enforced immediately, and a private appeal may be filed against it.
How to reduce the risk of setting aside
Many grounds relate to the arbitration agreement and notification of the parties. Check the wording before signing the contract: the Center's ready-made arbitration clause and the sample arbitration agreement will help you draft this provision without errors. State current addresses and contact details for notices in the contract. The procedure for proceedings at the Center is set out in the Rules, and an overview is available on the arbitration in Kazakhstan page. Which grounds for setting aside the courts have applied in practice is discussed in our review of Supreme Court practice for the first half of 2025.
Questions and answers
Can an arbitral award be appealed?
No. An arbitral award is final. In court it can only be challenged by an application to set aside filed with the court of appeal, and only on the grounds of Article 52 of the Law "On Arbitration".
How much time is there to apply to set aside an award?
One month from the day the award was received. The court restores a missed deadline only if the reasons are valid.
Will the court set aside the award if the arbitrators assessed the evidence incorrectly?
No. The court does not review the award on the merits: it examines only the grounds from the closed list.
Can the court's ruling setting aside the award, or refusing to set it aside, be appealed?
Yes, a cassation appeal may be filed against it.
If the award has been set aside, what next?
It depends on the ground. In the case of an invalid agreement, non-arbitrability, going beyond the scope of the agreement or a violation of public policy, the dispute is heard by a state court. In all other cases the agreement remains in force, and the dispute can be heard again in arbitration.
What should I do if the debtor does not comply with the award?
Apply to the court for a writ of execution within three years after the time limit for voluntary compliance expires. The award is then enforced by bailiffs.