Kuwaiti law permits two contracting parties to select a foreign jurisdiction to govern the terms of their agreement, as well as to hear any disputes that may arise over the agreement. While the law permits courts in Kuwait to issue an order for the execution of judgments rendered in a foreign jurisdiction under limited circumstances, the Kuwaiti courts are generally not in the practice of enforcing foreign judgments. The courts do, however, grant issuances to execute foreign arbitral awards.

Article 199 of Law No. 38 of 1990, or the Civil and Commercial Procedures Law ("CCPL"), provides that foreign judgments will only be executed in Kuwait if the foreign law in question is reciprocal in recognising and enforcing Kuwaiti judgments, whether by treaty or precedent, and only in accordance with the same conditions as provided for in the laws of the foreign country for the execution of judgments made in Kuwait.

Kuwait is a party to two treaties that allow for reciprocal enforcement of judgments. The first is the Convention of League of Arab States on the Enforcement of Judgments (1952) which has been inconsistent in the past with regard to reciprocity and largely dormant. The second treaty is Law No. 44 of 1998 Ratifying the Agreement for the Enforcement of Judgments and Judicial Notices in the Member States of the GCC.

In the absence of a treaty providing for reciprocal enforcement, Kuwaiti law provides that a court may issue the enforcement of a foreign judgment if there is sufficient evidence to show that the country in which the judgment was rendered has enforced Kuwaiti judgments in the past, but only in accordance with the same terms and conditions. Reciprocal enforcement may also be established by a legal opinion issued by the foreign jurisdiction outlining the steps and legal authorities that would enable the reciprocal enforcement of a hypothetical but similar Kuwaiti judgment. However, no Western countries have been found to have reciprocal relationships with Kuwait with respect to enforcement of judgments.

Procedural Requirements

Provided that a Kuwaiti court finds that it has the authority to issue the execution of a foreign judgment, Article 199 of the CCPL further requires that the following conditions are met:

  • The court issuing the judgment has jurisdiction over the subject matter;
  • The parties have been properly served with notice of the action;
  • The judgment does not contravene public policy or morals of the country where the judgment is enforced; and
  • The judgment is a final and conclusive judgment and does not contradict a judgment already rendered by a court in the country where the enforcement is sought.

Article 200 of the CCPL further requires that the judgment be made in relation to a matter which may be subject of a court case under Kuwaiti law and is enforceable in the country where it was issued.

A Kuwait court will not review the substantive or procedural aspects of the foreign case but will require evidence that the judgment satisfies the above criteria.

Despite the provisions within the CCPL allowing for foreign judgments to be enforced in Kuwait , there has only been one case where a foreign (Western/non-GCC) judgment was recognised and enforced in Kuwait . In that instance, a letter from a prosecutor in the United Kingdom (" UK ") was offered to support the UK 's reciprocal enforcement of Kuwaiti judgments. However, such evidence is considered weak by the Kuwaiti courts and their practice is to deny issuance of enforcement of foreign judgments.

Enforcing Foreign Arbitration Awards in Kuwait

Kuwaiti courts actively enforce foreign arbitral awards, despite the fact that the awards must meet with the same reciprocity and procedural criteria as foreign judgments under Articles 199 and 200.

Kuwait is a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the "Convention") and will recognise and enforce arbitral awards which are made in countries that are also signatories to the Convention.

Kuwait is also a signatory to the 1965 International Convention on the Settlement of Investment Disputes ("ICSID") which was ratified on January 14th, 1979 (Decree Law No. 1 of 1979). The scope of the ICSID is limited to legal disputes arising directly out of an investment between a contracting state (or any constituent sub-division or agency of a contracting state designated to the ICSID by that state) and a national of another contracting state. Further, a reservation in the ICSID states that a signatory may not be compelled to mediate or arbitrate a dispute by its mere ratification of the ICSID.

Provided that the reciprocity requirement is met, foreign arbitration awards are generally enforced in Kuwait , provided

that the following conditions are met:

  • The foreign award is rendered in a matter which may be the subject of arbitration and is enforceable in the country in which it is awarded;
  • The foreign award is rendered by a competent arbitrator in accordance with the laws of the country in which it is awarded;
  • The parties are promptly summoned to appear and are duly represented;
  • The award must become a res judicata according to the laws of the country in which it was awarded; and
  • The award must not be in conflict with an order judgment that has already been rendered by a court in Kuwait and does not contain anything which is in violation of Kuwaiti morality or public policy.

Conclusion

For the reasons stated above, it would be wise for Western parties who wish to enforce a foreign award in Kuwait to subject the agreement to arbitration.

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.