The Ministry of Commerce and Industry bases its regulation of electronic delivery platforms and applications on its regulatory authority to safeguard economic public order, particularly by regulating services and preventing practices that distort competition or impose unbalanced contractual terms on commercial establishments.
In practice, delivery platforms have developed strong bargaining positions, leading in some cases to high commissions, exclusivity clauses, and pricing restrictions resembling contracts of adhesion. This justifies regulatory intervention through mandatory rules designed to restore contractual balance and protect the market.
Accordingly, Ministerial Decision No. 109 of 2026 should not be viewed as an exceptional interference with freedom of contract, but rather as lawful regulation of an economic service that directly affects consumers and small and medium-sized enterprises. It is based on Decree-Law No. 10 of 1979 concerning the supervision of trade in goods, services, and craft activities and the regulation of certain prices, as well as the Kuwaiti Civil Code and Competition Protection Law No. 72 of 2020.
This legal opinion examines the legitimacy of the Decision, the limits of the binding force of contracts, its temporal effect on continuing contracts, and the legal measures required for companies to bring their operations into compliance.
Ministerial Decision No. 109 of 2026 regulates the relationship between delivery platforms, commercial establishments, and consumers through mandatory rules aimed at enhancing transparency, fair competition, and contractual balance.
Article 7 caps platform charges at 17% of the total order value, including commissions, advertising, premium visibility, ranking, and delivery-related fees. The cap falls to 10% where the client handles delivery independently. Platforms may not penalise clients for self-delivery, while consumer delivery fees are capped at KWD 1 per order.
The regulation prohibits exclusivity clauses, restrictive most-favoured-nation clauses, self-preferencing, algorithmic discrimination, and tying practices. Paid advertisements and sponsored listings must also be clearly identified, in line with Competition Protection Law No. 72 of 2020.
Clients may obtain aggregated order statistics free of charge within one week, subject to consumer data confidentiality. Platforms must also operate a complaints system, respond within 48 hours, and compensate consumers within seven business days where liability is established. A Ministry of Commerce and Industry committee will examine disputes and issue reasoned recommendations within seven business days after receiving complete documentation.
## Legality and Freedom of Contract
The Decision does not conflict with contractual freedom. Article 196 of the Kuwaiti Civil Code recognises the binding force of contracts while allowing legal restrictions where required by law. Freedom of contract remains subject to public order and legality.
The Decision is also supported by Decree-Law No. 10 of 1979, which authorises the Ministry to regulate services and pricing, and by Competition Protection Law No. 72 of 2020, which restricts anti-competitive practices and abuse of dominance.
Civil Code rules on contracts of adhesion further support intervention against unfair terms where one party lacks meaningful negotiating power, particularly where businesses depend heavily on digital platforms.
## Effect on Existing Contracts
New contracts are immediately subject to the Decision, while existing contracts must comply by 1 September 2026.
This does not amount to prohibited retroactive application because platform agreements are continuing contracts. Mandatory economic rules apply to their future effects without affecting transactions validly completed in the past.
Accordingly, terms exceeding financial caps, imposing exclusivity, or restricting pricing freedom may become unenforceable to the extent of their inconsistency with the regulation.
## Regional Comparison
Saudi Arabia focuses mainly on transparency, service quality, complaints, and operational compliance without a general commission cap. In the UAE, competitive business models may reduce commissions or replace them with subscription fees. Kuwait adopts a more direct model through mandatory caps on commissions and delivery charges.
## Legal Measures for Compliance
**Delivery Platforms**
1. Review licences and regulated activities.
2. Amend contracts and fees to comply with statutory caps.
3. Remove exclusivity, tying, and restrictive pricing clauses and review ranking systems.
**Commercial Establishments*
4. Review pricing structures.
5. Use the right to obtain statistical data while protecting consumer privacy.
6. Refer disputes to the Ministry’s committee where platforms fail to comply.
Conclusion
Ministerial Decision No. 109 of 2026 represents lawful regulation of an important economic service. It is supported by the Ministry’s statutory powers, Civil Code principles, and Competition Protection Law. Platforms and commercial establishments must therefore bring their contracts and operations into compliance by the prescribed deadline, or conflicting terms may become unenforceable and may result in administrative penalties.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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