CIVIL LAW AND CIVIL PROCEDURE

On the concept of public order

Abstract

This article analyzes the regulatory resolution of the Constitutional Court of the Republic of Kazakhstan adopted in September 2024, which recommended that the Government clarify the legal definition of “public order” in the Law on Arbitration in order to ensure its formal certainty. The author critically examines the position of the Constitutional Court, pointing out the conflation of the functions of a legal norm and a legislative definition: the latter serves the purpose of ensuring uniform application of the law rather than qualifying conduct as lawful or unlawful.

The article provides a detailed examination of four principal instances in which the concept of public order is applied in Kazakhstani law: the setting aside of arbitral awards, refusal of their enforcement, recognition of foreign arbitral awards, and limitations on the application of foreign law. Drawing on comparative foreign practice and expert opinions, the author demonstrates that the abstract nature of the concept of “public order” (ordre public) constitutes its essential characteristic, while its specific content is determined by courts on a case-by-case basis. The current wording of subparagraph 1 of Article 2 of the Law on Arbitration is considered sufficient and consistent with international standards. As a possible improvement, it is proposed to supplement the definition with an explicit reference to the Constitution of the Republic of Kazakhstan as the primary source of the foundations of the legal order.