On the barriers in the sphere of mediation of Kazakhstan
The law on mediation provides for the possibility of resolving disputes in an alternative extrajudicial way. At a meeting of the Senate of the Parliament of RK, Deputy Chairman of the Board of NCE RK "Atameken" Rustam Zhursunov spoke about the application of the mediation institute in disputes involving entrepreneurs. The current law "On Mediation" (hereinafter - the Law) provides for the possibility of resolving disputes in an alternative extrajudicial way. Proceeding from the current state of affairs in the sphere of protection of rights and interests of entrepreneurs, Atameken offers amendments to the law. "It is necessary to expand the scope of the law. It is necessary to remove the restriction that the mediation procedure does not apply to disputes, when one of the parties is a state body. In foreign countries, the practice of considering tax disputes by independent bodies - the tribunal, the commission, as well as alternative dispute resolution - the institution of the ombudsman, mediation and agreements has proven itself to be successful", - says Deputy Chairman of the Board of NCE RK "Atameken". Rustam Zhursunov explained that, taking into account the international experience, in particular the positive experience of Georgia, a special department was established at the Committee on State Revenues of the Ministry of Finance of the Republic of Kazakhstan on July 1, 2017, to review written objections of taxpayers to the preliminary act of tax audit.
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Also, on the initiative of Atameken, the Appeals Commission (AC) is working at the Ministry of Finance. As of October 1, 121 complaints were received by the Ministry of Finance, of which 31 complaints were considered by AC, and according to 34 complaints, the Ministry of Finance appointed a second audit. "There are disagreements in the spheres of environmental control and sanitary and epidemiological surveillance, where state bodies are involved. The Institute of Mediation is relevant for the resolution of such disputes. In this regard, it is necessary to make adjustments to the law and allow the application of mediation procedures in disputes with state bodies", - Rustam Zhursunov believes. It is necessary to apply conciliatory procedures for disputes with monopolists. "The condition for participation in the mediation procedure, in accordance with the current Law, is the mutual voluntary will of the parties. It is proposed to consolidate the category of disputes in the law, according to which the pre-trial settlement within the framework of mediation is mandatory. For example, disputes with monopolists and organizations of the quasi-public sector", - the speaker said. During the speech, a question was raised about the role of Atameken as a mediator. Noting that at present there are formal requirements for mediators - individuals. Then, as there are organizations that by virtue of their status carry out conciliation procedures. In "Atameken", for example, entrepreneurs are engaged in disputes between themselves. In the course of the meeting, another proposal of the National Chamber was announced: self-regulation of media activities, establishment of SRO standards of conduct and qualification requirements for professional mediators. The speaker added that the excessive legislative regulation of unprofessional media activities, the presence of administrative barriers call into question the development of the institute of mediators. There is no need to register or include in the registers persons who, due to their reputation and authority on an unprofessional basis, act as mediators.
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