1. Peculiarities of interim measures under Kyrgyz law
In many instances, national standards for judicial interim measures are applied to arbitration cases. In addition, the Code of Civil Procedure (Art. 142) sets out the circumstances under which a competent court can grant interim measures related to a dispute that is subject to arbitration.
Institutional arbitration.
Under Kyrgyz law, local courts can only grant interim measures in institutional arbitration cases. Ad hoc arbitration does not receive such judicial support. Since complex infrastructure and construction projects in Kyrgyzstan are typically funded by international financial institutions (such as the World Bank, Asian Development Bank, etc.) that frequently opt for ad hoc arbitration under the UNCITRAL Rules, it is important to be aware of this restriction. In the present case, there were no issues with the imposed requirement, as it was administered by an arbitration institution.
Effective jurisdiction of Kyrgyz courts regarding interim measures.
Under Kyrgyz law, a party involved in arbitral proceedings may file a request for interim measures at the place of the arbitration, the defendant's residence, or the location of the defendant's assets. In other words, the court's jurisdiction to grant interim measures is based on the connection between the parties or the arbitral proceedings and Kyrgyzstan. This is due to the effectiveness of the requested measures. Effective interim measures, such as the freezing of assets, can only be implemented by the courts of the state where the assets are located.
In this case, the interim measures requested by the party (seizure of an aircraft and prohibition of deregistration of the aircraft) could be effective, because the aircraft was located and registered in Kyrgyzstan. Therefore, the Kyrgyz court established its jurisdiction to take the necessary measures. At the same time, the court may have been more cautious in considering other measures that had no territorial connection with Kyrgyzstan. These measures may be challenging to enforce, especially if they require foreign jurisdiction cooperation. Kyrgyz courts may also avoid measures that may interfere with the arbitration process or the powers of the courts at the seat of arbitration out of respect for their primary role in supervising arbitration. This reflects a commitment to limited court intervention and prevents potential jurisdictional conflicts.
Documents requirement.
If a party wishes to file a request to a local court for interim measures, it must provide the following documents:
·a copy of the request for arbitration certified by the arbitral institution where the case is initiated; and
·a notarised copy of the arbitration agreement.
The current legislation does not specify what is meant by a 'certified copy of the request for arbitration by the arbitral institution'. In practice, courts are generally satisfied if they receive a copy of the request for arbitration with a stamp from the arbitral institution indicating the date of receipt and the case number assigned by the institution. In this case, the court accepted a letterfrom the arbitral institution as a certified copy of the request, confirming that the request had been received and accepted for consideration in the institution.
Notarising a copy of an arbitration agreement becomes an issue in the majority of interim measure requests before Kyrgyz courts. This requirement is not only stricter than necessary, but is also difficult to follow in practice, because Kyrgyz legislation technically prohibits the notarisation of copies if the initial document was not notarised first. However, in this case, such difficulties did not arise. The court accepted the copy of the arbitration agreement without strictly following the formalities imposed by the law.
Types of interim measures.
The list of interim measures a court may impose under Kyrgyz law includes the freezing of assets, the prohibition of certain actions, and the imposition of obligations on the parties to perform certain acts. Furthermore, the court may, 'in necessary cases', adopt additional measures not explicitly provided for in the legislation. For instance, the law does not explicitly provide for prohibiting a third party from engaging in certain actions, such as deregistering an aircraft. The court deemed that adopting such a measure aligns with the objectives of interim measures - to prevent the subsequent impossibility of enforcing the court's decision - and thus went beyond the listed interim measures.
The court also has the authority to grant several types of interim measures simultaneously, as was done in this case. The court took the action of seizing the aircraft and also prohibiting the State Civil Aviation Agency from deregistering it from the State Register of Aircraft of the Kyrgyz Republic.
Appealing the Court decision.
A court ruling on interim measures can be appealed in higher instances, such as the appellate court and then the Cassation Cassation Court. However, filing an appeal against an order for interim measures does not suspend the enforcement of that order. This rule serves to promote the principle of expediency of interim measures and to ensure they are not delayed while the appeal is pending.
This is particularly relevant in certain circumstances that extend the time for review of the claim. For example, if the appellate court decides to request properly certified copies of case materials from the arbitral institution during its review of the complaint, this could cause delays. In such cases, the review period may be extended due to the need to obtain additional documentation. Therefore, the legal provision ensuring that the court's ruling on interim measures is enforced immediately, without suspension in the event of an appeal, serves as an important safeguard for the prompt enforcement of interim measures in support of the arbitral proceedings. The District Court ruling in the current case was not appealed.
In many instances, national standards for judicial interim measures are applied to arbitration cases. In addition, the Code of Civil Procedure (Art. 142) sets out the circumstances under which a competent court can grant interim measures related to a dispute that is subject to arbitration.
Institutional arbitration.
Under Kyrgyz law, local courts can only grant interim measures in institutional arbitration cases. Ad hoc arbitration does not receive such judicial support. Since complex infrastructure and construction projects in Kyrgyzstan are typically funded by international financial institutions (such as the World Bank, Asian Development Bank, etc.) that frequently opt for ad hoc arbitration under the UNCITRAL Rules, it is important to be aware of this restriction. In the present case, there were no issues with the imposed requirement, as it was administered by an arbitration institution.
