| Kuwait
Arbitration Laws
The relevant by virtue of Law No. 11 of 1995,
organizing Ministerial Resolutions and the Civil &
Commercial Procedure,
Code No. 38 of 1980
INTRODUCTION
Arbitration is a word most
of the populace i.e. the commoners or prominent people
of expertise think that it is a new expression in this
modern age, it is a word, term and system known by Islam
almost 1400 years ago.
it is mentioned in the
Holy Qura'n thus it was known by Arabs Pre- Islamic
era. Moreover, the ancient Muslims had practiced arbitration
in a large scale as a successful means of settling all
types of dispute questions.
Most of the world countries
have today realized the importance of this system for
certain types of disputes, which are characterized by
the nature of this era.
The development of international
and domestic business operations in the current century
relates to the increasing requirement of Arbitration
as a way of dispute settlement. Consequently, it has
become a prominent feature of both domestic and international
business transactions.
The desire of dealers to
be liberated as far as possible, from the restrictions
imposed by laws, rules and regulations to an extent
urging a prompt settlement of disputes in general, specially
those of a commercial nature which are to be settled
within a minimum possible time for the stability of
the legal positions among the dispute parties with the
least possible process service, publicity and a simplified
procedure, all of which properly engulf the dispute
tightly within a streamed framework, has considerably
participated in diffusion and spread out of arbitration,
in addition to the availability of professional experts
highly specialized who shall be entrusted with settling
those critical disputes of complicated features, and
characteristics generally comprising civil and commercial
dealings, particularly the international transactions
and operations which are related to technical affairs,
customs, usage's and terms, have necessitated the existence
of highly technical specialization and professional
experts to realize the relevant purport and reveal the
size of dispute connection with the extent of pertinent
effect on the right of the litigant parties. Such experts
shall be nominated by the dispute parties concerned,
who shall also accept the verdicts arbitraments and
awards rendered in respect of the dispute under settlement.
However the State of Kuwait
has realized these facts a long time ago. Thus it has
been keenly desirous to reflect the significant importance
of this system in order to be included in Kuwait legislations
and laws, so that the awards rendered by arbitrators
shall be confirmed and recognized by the judiciary in
accordance with certain rules and procedure. Consequently
the legislations governing voluntary arbitration and
judicial (compulsory) arbitration were promulgated.
The first judicial arbitration
duly provided for in Kuwait legislations comprise the
stipulation of Article 39 of the Amiri Decree No. 19
of 1959. Thenceforth it was followed by the legislations
concerned with covering the said system.
In view of the considerable
importance of that the said system and its growing role
in Kuwait legislations, the law No. 11 of 1995, governing
the Judicial Arbitration on Civil and Commercial Articles
was promulgated. The Ministry of Justice has constantly
described and shed light on the provisions of this law,
reflecting its true image to all parties and individuals
concerned with that system together with others that
are governed by its provisions. Moreover, the Ministry
hereof hopes that these legislations shall be developed
constantly and appropriately enhanced in order to cover
the international field and keep pace with the requirements
of this era for the purpose of business booming, specially
the foreign trade and international relations, so as
to realize its expected objectives and targets.
May Almighty Allah
grant us success.
JUDICIAL ARBITRATION DEPARTMENT.
| Kuwait
Rules
OTHER
RELATED ARBITRATION LAWS
CIVIL
AND COMMERCIAL PROCEDURE CODE
NO. 38 OF 1980
CHAPTER
TWELVE
ARBITRATION
ARTICLE (173)
Agreement may be made on arbitration
in a specific dispute and on arbitration in
all disputes arising from the implementation
of a certain contract.
Arbitration may not be established,
save in writing.
Arbitration may not be held
in the matters where a compromising conciliation
may not be reached. Arbitration is deemed to
be valid only when made by a competent person
who shall have the capacity to dispose of the
right under dispute.
The subject matter of the dispute
shall be specified in the agreement on arbitration
or during the pleading, even when the arbitrator
is authorized to compromise and hold conciliation,
otherwise the arbitration shall be deemed null
and void.
Courts shall have no jurisdiction
over hearing the disputes agreed to be arbitrated.
Waiver to plea for non-jurisdiction may be made
explicitly or implicitly.
Arbitration shall not include
the summary matters, unless otherwise is explicitly
agreed upon.
ARTICLE
(174)
The arbitrator may not be a
minor, under attachment or deprived of his civil
rights by the reason of any criminal punishment
or he is declared bankrupt, unless he has been
rehabilitated.
In the event of several arbitrators,
their number must be odd in all cases. The arbitrator
shall be specified in the agreement on arbitration
or in a separate agreement.
ARTICLE
(175)
If the dispute occurs
without the litigant parties having agreed on
the arbitrators or in case one or more arbitrators
abstain/s from working, withdraws or is/are
dismissed or an obstacle against his/their work
is established, without having an agreement
reached between /among the litigant parties
in this respect, the court of jurisdiction originally
competent to hear the dispute shall appoint
the necessary number of arbitrators upon the
request of one litigant party, under the ordinary
procedure of case filing. The number of arbitrators
appointed by the court shall be equal to the
number agreed upon between the litigant parties
or complementary thereto. The award rendered
may not be objected by any means of objection.
ARTICLE
(176)
Arbitrators may not be
authorized to compromise, conciliate or render
award as compromising arbitrators unless they
are mentioned namely in the agreement on arbitration.
ARTICLE
(177)
The Ministry of Justice
may form one or more Arbitration Panels to be
held in the seat of the Court of First Instance
or in any other location to be specified by
the Chief of the Panel. Presidency over the
panel shall be taken over by the counsel or
a Justice judge to be selected by the General
Assembly of the competent court, and its membership,
duly comprising two merchants or experts of
other specialized areas all of whom shall act
as members and be selected from the rolls prepared
for this, the said purpose in accordance with
the procedures and rules to be issued under
a resolution made by the Minister of Justice.
One of the staff of the Court of First Instance
shall act as secretary of the panel.
The disputes agreed by the concerned
parties in writing to be brought before it shall
be brought free of fees. Consequently the rules
prescribed in this chapter shall be applicable
to the same. Nevertheless, it may render the
awards, arbitraments, verdicts and orders referred
to under paragraphs A, B and C of Article (180)
thereof.
ARTICLE
(178)
Without prejudice to
the provisions of the preceding article or any
other law, it is conditional that the arbitrator
accepts handing his task, and such acceptance
shall be confirmed in writing.
If the arbitrator withdraws-without
a serious reason-from performing his work after
accepting the arbitration, he may be adjudged
to pay compensation. Dismissal of the arbitrator
may not be made, save upon agreement by all
litigant parties. Recusation of the arbitrator
for award purposes may not take place, save
for reasons occur or appear after being appointed
in person. Recusation may be requested for the
same reasons of recusation of the judge or by
which he shall submit to the court originally
competent to hear the action, within five days
from notifying the litigant party of appointing
the arbitrator, or from the date of occurrence
of the reason for recusation or that he was
aware of, if it is consequent to his notification
of appointing the arbitrator. In all cases,
the application for recusation shall not be
accepted if the arbitrators' award is rendered
or the pleading in the action is closed. Applicant
for recusation may appeal the judgment rendered
in his application, no matter what the value
of dispute under determination is.
ARTICLE
(179)
The arbitrator shall
within thirty days at most from accepting the
arbitration - notify the litigant parties of
the date and venue of the first session set
for hearing the dispute, without compliance
with the rules prescribed in this law for notice
serving. An appointment shall be fixed for them
to submit their documents, their pleadings and
defenses. Award may be rendered pursuant to
the submissions of one party if the other party
fails to appear on the fixed date.
In the event of several arbitrators,
they shall jointly handle the investigations
proceedings and each one of them shall sign
the minutes and verbal process, unless they
unanimously agree on delegating one of them
for a certain procedure, and confirm his delegation
in the minutes of the session, or in case the
agreement on arbitration authorizes one of them
to do so.
ARTICLE
(180)
Litigation before the
arbitrator shall be discontinued if any of the
reasons for discontinuing the litigation as
prescribed under this law arises. The discontinuation
shall result in its legally prescribed effects.
If within the arbitration process
a primary matter out of the jurisdiction of
the arbitrator is presented or an objection
is made for forgery of a paper or criminal proceedings
were already taken for such forgery, or in case
of any other criminal occurrence, the arbitrator
shall suspend his work until a final judgment
is rendered in that respect.
Consequently, the arbitrator
shall suspend his work and refer the case to
the Chief Judge of the court originally competent
to hear the dispute so as to effect the following:
- Adjudicating
the legally prescribed penalty upon the witnesses
who fails to appear or abstain from answering.
- Having
third parties adjudged to submit any document
in their possession, which is deemed necessary
for rendition of the relevant award.
- Writ
of Legal Assistance.
ARTICLE
(181)
If in the agreement on
arbitration the litigant parties do not stipulate
a time for award the arbitrator shall arbitrate
within six months from the date where the litigant
parties where notified of the arbitration session.
Otherwise, any litigant party who is desirous
to do so may bring the dispute before the competent
court or proceed on if it was already filed.
In case the dates of notifying
the litigant parties vary, such date shall commence
to run as from the date of last notification.
Litigant parties may agree explicitly or implicitly-upon
extending the date specified in the agreement
or under legal procedure. They may authorize
the arbitrator to extend it to a certain time.
The date shall be suspended when the litigation
is suspended or discontinued before the arbitrator
and shall be resumed as from the date the arbitrator
has been aware of the fact that the reason for
suspension or discontinuity is no longer valid.
If less than two months remain from the said
date, it shall be extended to two months accordingly.
ARTICLE
(182)
The arbitrator shall
render his award without compliance with the
pleading procedures save the proceedings provided
for in this Chapter. Nevertheless, the litigant
parties may agree upon certain proceedings,
to be followed by the arbitrator in that respect.
The award rendered by the arbitrator
shall be based on the law provisions, unless
he is authorized to compromise and conciliate,
where he shall not comply with such provisions,
save those relating to the public order.
The rules governing urgent self-executing
judgments shall be applicable to the arbitrators'
awards.
Arbitrator's award shall be
rendered in Kuwait, otherwise the prescribed
rules applicable to the arbitrators' awards
in a foreign country shall be applied in that
respect.
ARTICLE
(183)
The arbitrators' award
shall be rendered by a majority opinion in writing,
and shall in particular comprise a copy of the
agreement on arbitration with a summary of the
litigant parties statements, documents, grounds
of award its text, the date rendered, the venue
and signatures of arbitrators. If one or more
arbitrators refuse to sign the award this fact
shall be stated therein. The award is deemed
appropriately valid if signed by the majority
of arbitrators.
Award shall be drawn up in Arabic
unless otherwise is agreed upon by the litigant
parties. Consequently an official translation
thereof shall be attached thereto at the time
of its depositing. The award shall be deemed
to have been rendered as from the date it was
signed by the arbitrators after it had been
typed.
ARTICLE
(184)
The original award shall
be deposited, even if rendered under any of
the investigation procedures together with the
original agreement on arbitration, with the
Clerical department of the competent court originally
hearing the dispute within ten days following
the award terminating the litigation.
The clerk of the competent court
shall draw up a record in respect of the said
depositing.
ARTICLE
(185)
The award rendered by
the arbitrator shall not be enforceable, save
under an order issued by the Chief Judge of
the court where the award was deposited with
its Clerical Department upon the request of
one of the concerned parties, after having perused
the award rendered, the agreement on arbitration
and meanwhile verifying the nonexistence of
the impediments of its implementation and the
basis of appeal limitation, if the award is
appealable and not urgently self-executing.
The writ of execution shall be impressed at
the foot of the original award document.
ARTICLE
(186)
The arbitrator's award
may not be appealed, save when otherwise is
agreed upon by litigant parties prior to its
rendering. The appeal shall then be filed before
the Court of First Instance with an appeal panel.
It shall be subject to the rules prescribed
for appeal of the judgments rendered by the
effect from the date of depositing of the original
award with the Clerical Department pursuant
to article (184).
Nevertheless, the award shall
not be appealable, unless the arbitrator is
authorized to compromise and conciliate, or
if he is an arbitrator of Appeal, or the value
of the relevant action does not exceed KD 500
or the award is rendered by the panel provided
for under Article (177).
Any concerned party may request
nullification of the final arbitrator's award
in the event of the following cases, even when
otherwise is agreed upon prior to its rendering.
- If it
is rendered without an arbitration agreement
or under a null and void arbitration agreement,
the lapse of limitation date was Lapsed or
the award is out of the agreement on arbitration.
- If any
of the reasons under which a plea for re-hearing
is established.
- If a
nullification of award or the proceedings
which may prejudice the award occurs.
ARTICLE
(187)
Action for nullification
shall be brought before the competent court
of jurisdiction originally hearing the dispute
through the normal process and formalities of
filing cases, within thirty days from the award
notice. Such a limitation period shall commence
to run in conformity with the provisions of
Article 149 in the cases where a cause for re-hearing
application is established.
The relevant declaration shall
contain the ground of nullification, otherwise
it shall be null and void.
The person filing the action
shall deposit KD 20 at the time of depositing
the relevant declaration, as bail. Depositing
of one single bail shall be sufficient in the
event of several plaintiffs, if they have filed
their action by means of one declaration, even
if the grounds of nullity are variant. The government
shall be exempted from depositing such bail
(surety) and those who are exempted from paying
legal fees shall also be exempted therefrom.
The bail shall be confiscated
by force of law once it is adjudged to reject
the action, or its filing is deemed impermissible,
elapsed, invalid, rulified or reject.
If the court has rendered a
judgement nullifying the arbitrators' award,
it shall then re-hear the dispute issue and
determine on its merits accordingly.
ARTICLE
(188)
Filing of the nullification
shall not cause the stay of execution of the
arbitrator's award.
Nevertheless, the court hearing
the action may order - upon the request of a
plaintiff - the stay of execution of the award
rendered if it is feared that a gross damage
may occur due to its execution and once the
ground of nullification gives preference to
the nullity of the award rendered.
Upon
ordering the stay of execution, the court may
necessitate presentation of a bail surety or
order what it deems to protect the right of
the necessary respondent. The writ of award
execution shall be applicable to the proceedings
taken by the judgement beneficiary, with effect
from the date of application for stay of execution.
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Kuwait
Rules
MINISTERIAL ORDERS IMPLEMENTING ARBITRATION LAWS
MINISTERIAL
RESOLUTION NO. (43) OF 1995 ON JUDICIAL ARBITRATION
- CIVIL & COMMERCIAL ARTICLES
The
Minister of Justice & Administrative Affairs, having
perused Article (72) of the Constitution; and Article
No. (13) of Law No. (11) of 1995 on Judicial Arbitration,
Civil & Commercial Articles; and The Resolution
of the Minister of Justice No. (133) of 1993 on nomination
of Assistant Undersecretaries with specification of
their jurisdiction; and
Pursuant to the proposal
made by the Undersecretary, hereby decide the following:
ARTICLE
1
One or more
Arbitration Panels shall be formed at the court of Appeal,
each of which consisting of three judiciary-men selected
by the Supreme Judiciary Council and two from the Arbitrators
Registered in the Rolls deposited with the Arbitration
Department or of other individuals. Each Arbitration
Party, even if numerous, shall select one of them. The
panel shall be presided over by the most senior member
of the Judiciary-men, provided he holds the office of
Justice (counselor). The Panel Secretariat function
shall be performed by one of the Arbitration Department
employees.
The Panel shall hold its
sittings at the Court of Appeal or at any other venue
specified by the Chief of the Panel.
ARTICLE
2
Whoever
is registered in the Arbitrators' Roll shall as a condition
satisfy the following:
- To be a Kuwaiti
national
- To have good
conduct and reputation
- He should
not have been dismissed from service under a disciplinary
decision, unless at least three years have elapsed
from the date such a disciplinary decision was issued.
- He should
not have been sentenced to a detentive penalty in
an offence involving moral turpitude or integrity
unless he has been rehabilitated.
- To be a holder
of appropriate academic qualifications and experience
as duly approved by the Committee specified in the
following Article.
ARTICLE
3
A Committee
comprising the following members shall be set up for
selecting the arbitrators accepted to be registered
in the Roll:
- The Chief
Justice of the Court of Appeal Court, as Chairman
- Assistant
Undersecretary for Expertise and Arbitration Affairs,
Member.
- Assistant
Undersecretary for Financial and Minor Affairs,
Palace of Justice, Member.
The Committee shall have
Competence to select the Arbitrators accepted for registration
in the Arbitrators' Roll who meet the requirements stipulated
in the preceding article from among the registration
applicants of those Rolls or from the lists submitted
by the Competent Authorities. Moreover, it is empowered
to amend the said Rolls. The Secretarial Affairs of
the Committee shall be entrusted to the Arbitration
Department Director.
ARTICLE
4
The
arbitration application, comprising one original and
a number of copies equivalent to the number of litigants,
shall be submitted to the Arbitration Department with
the following documents attached thereto:
A copy of the Arbitration-stipulation,
i. e. fixed conditions of the contract including the
arbitration clause, duly stating in the application
the date it was drawn up, the names and surnames of
litigants, their capacities, representatives and their
original or elected domicile in addition to the issue
of the dispute submitted to the Arbitration Panel with
a summary of each litigant's pleas defense, and pleading
properly invoked with the name of the selected arbitrator,
if any, and an indication on whether his fees have been
settled or not.
The application shall be
entered in the appropriate Register the day submitted.
ARTICLE
5
Each
of the arbitration parties shall select his arbitrator
from among the arbitrators registered in the Rolls appropriately
prepared and available at the Arbitration Department
or from elsewhere within ten days following the date
where the Arbitration Department has requested him to
do so. In case of a party's failure to appoint an arbitrator,
then the said Department shall appoint an arbitrator,
whose turn has come in conformity with the Roll of the
Professional Arbitrators duly specialized in the issue
of disputes, for the Panel's membership.
ARTICLE
6
The
Arbitration application shall be presented to the Chief
of the Arbitration Panel within three days following
the selection of arbitrators, in order to assess the
amount each Arbitration party shall deposit on the account
of his arbitrator's fees, in case there is no prior
notification from the arbitrator to the effect confirming
that fees have already been settled. The Arbitration
Department shall then request the two arbitration parties
to deposit the amount they are required to pay with
the Arbitration Department Treasury within the following
ten days. In case a party fails to deposit such amount,
the Arbitration Department shall notify the other party
thereof within the following five days who shall have
the right, if desirous to proceed on the Arbitration
Proceedings, to deposit the required amount within the
following ten days.
If such a period expires
without the required amount being deposited by either
party of the litigants, then the Arbitration Department
shall present the Arbitration application to the Chief
of the Panel to give his order for the case to be left
on the file with refunding of the amount deposited on
the account of Arbitration Fees by either party to the
same litigant party concerned.
The Arbitration Department
shall present the Arbitration application to the Chief
of Arbitration Panel within three days following the
depositing of the fees of the selected arbitrators to
specify a date and venue for a sitting to be convened.
The Arbitration Department shall then notify the two
litigant parties of the Panel's full formation (a setting
in banc within the following five days and shall specify
a date for them to submit their documents defense and/or
pleadings. The relevant notice shall be served in conformity
with Article 179 of the Civil and Commercial Procedure
Code or by any other means of summons service duly agreed
upon by the litigant parties such as fax, post or telephone.
ARTICLE
7
Each
member of the selected Arbitration Panel shall take
an oath before the Chief of the Panel prior to commencement
of the task entrusted with, stating that he shall carry
out his duties with trust and confidence.
ARTICLE
8
In the
event of any arbitrator adjudged to be recused, withdrawn
or removed for any reason whatsoever, his replacement
shall be appointed in conformity with the same procedure
duly applied at the time of his appointment.
ARTICLE
9
The
Arbitration Panel shall determine on the dispute brought
before it and render the relevant arbitrament without
abiding by a certain period of time, in exception to
the provision of Article 181 of the Civil and Commercial
Procedure Code.
The Panel shall apply the
provisions and proceedings provided for in the Arbitration
Law No. (11) of 1995 and those articles prescribed in
the Civil and Commercial Procedure Code provided that
they are not contradictory to the provisions of this
Resolution.
ARTICLE
10
The
Undersecretary shall implement this Resolution and that
any Resolution contradictory to its provisions shall
be repealed. This resolution shall be operative the
date published in the Official Gazette.
Kuwait
Rules
REGIONAL AND INTERNATIONAL
CONVENTIONS RELATED TO ARBITRATION
LAW
NO. 44 OF 1998 CONCERNING AGREEMENT ON THE CONVENTION
ON JUDICIAL JUDGEMENTS, DELEGATIONS AND SUMMONS IN THE
GCC STATES
Having reviewed
the Constitution and
Law No. 44 of 1981 concerning
Agreement on the Statute of the GCC States
The National Assembly has
agreed on the following law which we hereby sanction
and promulgate:
Article
(1)
The Convention on
Enforcement of Judicial Judgements, Delegations and
Summons in the GCC States approved by the Supreme Council
of the GCC States at its sixteenth session held in Muscat
during the period falling between 12 and 14 Rajab 1416
Hijri corresponding to the 4th to 6th December 1995,
and attached herein, is hereby ratified.
Article
(2)
The Ministers, each
in his respective capacity, shall implement this Law
and it shall come into effect from the date of publication
thereof in the Official Gazette.
AMIR OF KUWAIT
JABER AL AHMAD AL-SABAH
Issued at Bayan Palace
on 8th Rabi Al- Akhar, 1419H
Corresponding to 1st August 1998.
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