OVERVIEW OF THE KUWAIT LITIGATION PROCESS (CIVIL/COMMERCIAL)
The Kuwait judicial system is comprised of a recognizable three-tier system:
- Court of First Instance (composed of the Small Claims Court and the General Court);
- Court of Appeals; and
- Court of Cassation
If an appeal is made to the Court of Appeal, the litigants may expect to wait up to a year for a judgment to be rendered. If that judgment is further appealed to the Court of Cassation, this final review may be pending for an additional two years. In short, it is not uncommon for a complex dispute before the courts of Kuwait to remain in legal proceedings for as long as seven years.
Kuwaiti courts provide a fair opportunity for parties to resolve their disputes; however, the process can be overwhelming and is likely to last for considerable amount of time before a final, unappealable award is issued. Court sessions are generally conducted in an open court, unless the nature of the matter or circumstance demands confidentiality; in such cases court sessions may be conducted in private.
Court of First Instance
- Writ of Summons
Initiation of a suit begins with a writ of summons, or statement of claim, submitted by the claimant(s) and properly served upon the respondent(s), which will include, amongst other things, the names of the parties and the details of the claim(s) asserted by the claimant(s). While a simple preliminary requirement, service of process may take several months when the party being served is based outside of Kuwait and has no agent of record within the State. Thus, some cases are dismissed, without prejudice, in the early stages simply due to a failure to properly serve the respondent(s). In such cases, dismissal often comes after about six months from the time the writ of summons is initially filed. This often does not, however, prevent the claimant from initiating a new suit. It is important to understand what constitutes proper service, and thus proper advice in that regard is essential.
The form, substance and content of the Statement of Claim are the subject of Article 45 of Law No. 38 of 1980 concerning Civil & Commercial Procedures.
To commence action, a claimant submits his/her writ of summons together with the supporting documents to the court clerk at the Court of First Instance. The court clerk is required to maintain a copy thereof and to refer the original to the General Court’s Execution Department for effectuating service.
By then, the claimant should have decided on at least the general strategy of his/her claim. The common pattern in Kuwait is to make a very general statement of claim initially and, after the service of process and the receipt of the Statement of Defense (and/or Counterclaim), is to amend the claim to include as many causes of action and as many defendants as appropriate. Also, alternative arguments are not uncommon.
After the writ of summons is submitted to the clerk of court, the clerk records it in the court record and refers it to the court service of process apparatus. An acceptable writ of summons would prompt the court clerk to set a court date about five (5) days thereafter. Failure by the respondent to appear would not affect the validity of the initial date, but will merely empower the court to adjourn the hearing for a maximum of three weeks.
- The Statement of Defense (and/or Counterclaim)
The respondent(s), upon being properly served, must respond to the writ of summons with a writ of defense and counterclaims (if any) to include, amongst other things, preliminary motions (e.g., requests to dismiss the claims for lack of jurisdiction or standing to sue), arguments against the claimant(s)’ claim(s) and any facts and evidence it chooses to present at the time. This initial response is of most importance for respondents because it is often the only opportunity to raise certain fundamental objections, such as for lack of jurisdiction of the court. Thus, if you are the respondent, it is important to involve your legal counsel as early as possible to explore all angles of defending your lawsuit.
Generally, the respondent has about three weeks before the next court hearing to prepare its submission.
The respondent is often in a more advantageous position to fashion an effective strategy because the respondent has the benefit of the claimant’s writ of summons and possibly most of the plaintiff’s evidence. The respondent also benefits from the right of defending against the plaintiff’s allegations for the duration of the trial, and is entitled even to make certain additional defenses during his closing argument or summation.
- Expert Department Phase
Once initial pleadings are submitted to the satisfaction of the court of First Instance, the presiding judge will then review the pleadings and decide either to (i) dismiss the claimant(s)’ claim(s), (ii) refer the claim(s) to the court’s Expert Department (part of the General Court), or (iii) call for a hearing.
Where the matter requires an expert to review the merits of claims, defenses, evidence submitted, et cetera, the presiding judge will often issue a preliminary judgment referring the matter to the Expert Department. The expert appointed is often tasked with broad responsibilities, such as determining rights and obligations, whether a party breached any obligations, whether any defenses are at play, and whether damages have been suffered and if so how much.
During the Expert Department phase, the expert would set a number of hearings where the parties submit memoranda, evidence, responses to any questions raised by the expert, and argue as appropriate before the expert. The expert’s role is often broad, and the Expert “phase” is considered one of the most crucial ones of the entire litigation procedure. Given the broad role of the expert, this phase of litigation can easily last one or even two years depending on the complexity of the matter with regular hearings every few weeks. Translation of documents is often a driving factor of the long process of the expert’s review.
Once the expert is satisfied with the record before him/her, the expert will then issue a report to the Court of First Instance with his/her conclusions and recommendations as requested by the preliminary judgment appointing the expert. Parties may, and often do, object to the expert’s recommendation in part or in whole, sometimes causing the Court to refer the matter back to the Expert Department for additional considerations.
While it is not possible to anticipate the duration of proceedings with any degree of certainty, it is commonplace for complex commercial disputes (such as those relating to engineering and construction) to take up to three years with the Court of First Instance before a final judgment is rendered.
Court of Appeals
Judgments rendered by Kuwaiti courts generally become conclusive and final, if not appealed within thirty (30) days of the date of judgment. Events which may delay the finality of the judgment may be based on a motion for reconsideration to the same court, appeal of questions or law or fact to the court of second instance, or appeal based on the illegality of trial proceedings to the Court of Cassation. Appellate proceedings, however, do not necessarily prevent the executions of judgments.
Article 144 of the Civil & Commercial Procedure provides that the appeals court begins where the trial court had left off. In practical terms this means that the parties to the appeal may be permitted to re-argue questions of law and fact in the court of appeals. It may take several months’ time before the Court of Appeals sets a hearing for the parties to appear. The Court of Appeals may (i) affirm the judgement below, (ii) reverse/remand the judgment below, or (iii) review the case de novo (i.e., the parties would re-litigate the matter as they did in the Court of First Instance). The court judgment eventually rendered would be based on sufficiency of evidence as the standard of its review, the judgment below notwithstanding.
Appeals are essentially taken as of right but are not necessarily taken on the merit. The relevant time for effectuating the appeal is thirty (30) days from judgment date. If the appeal alleges that the judgment is based on forged evidence, the thirty (30) days period begins to run from the date of discovery of such allegation.
Court of Cassation
Judgments rendered by the Court of Appeals may be appealed further to the Court of Cassation only in the following circumstances:
- If the appealed ruling appears to violate the law or be erroneous in its implementation or interpretation;
- If the ruling has been rendered null and void or if the procedures have been rendered null and void as a result of the ruling; or
- The final ruling issued by any court that rules on a dispute is in contravention of another earlier ruling issued to the same litigants which has obtained the force of res judicata.
As with appealing in the Court of Appeals, the appellant has thirty (30) days to submit its appeal with the Court of Cassation. The registration of the appealed matter, notification of the adversary and other bureaucratic procedures are similar to the pattern followed at the trial level.
If the appellee wishes to submit a defense, he must deposit a memorandum of defense within fifteen (15) days of the date of notice of the appeal, and attach any documents he wishes to submit.
Upon submission of the parties’ documents, the attorney general of the Court of Cassation reviews and submits his own memorandum giving his view on the reasons for the appeal.
The Court of Cassation then reviews and may decide to reject the appeal if it finds any procedural error. Otherwise, the court will schedule a hearing to review the appeal. Note that here the court may rule on the appeal in the absence of the litigants.
Note also that if the court rules to allow an appealed ruling to be brought for cassation, it shall rule on the merits of the ruling (i.e. de novo), unless the appeal was regarding jurisdiction of the lower court in which case the court shall limit its ruling to that issue.
Rulings issued by the Court of Cassation are final and non-appealable.
In summary, the time for a case to go through the entire litigation process in Kuwait may last six or even seven years, including all levels of appeal. In the Court of First Instance, an award may not be rendered until two or three years from the time the case first initiates. The Court of Appeals may add another year or so to this timeline. Finally, the Court of Cassation may sit on an appeal for over a year before deciding whether to accept the same.
The Kuwaiti legal system is a civil law jurisdiction that is a blend of French civil law, Islamic legal principles, and Egyptian law. The Kuwaiti legal and regulatory system is continuously growing and developing, and is dynamic and subject to frequent changes in application and interpretation. As such, it is often necessary to liaise with the relevant government authorities to seek their confirmation as to how the law might apply in respect of a particular business activity. In addition to obtaining confirmation of the current legislative and regulatory framework, an understanding of the current policies and interpretations in force and the practical approach to the resolution of these matters is important.
It is important to involve legal counsel in the early stages of a dispute, or potential dispute. The right legal team will advise their client of the risks and opportunities of proceeding with a dispute, will discuss the details and benefits, or risks, of settlement, and will guide their client on best practices for building a strong factual record.
GLA & Company’s lawyers and legal consultants carry the expertise and capability to properly advise and represent at all levels of a dispute, whether in Kuwait or abroad, and work closely with their clients, and oftentimes with international firms to best advise and represent them toward a favorable resolution.