Introduction

Enforcing a foreign court judgment in Kuwait requires an understanding of comparative legal frameworks and adherence to certain procedures and requirements. This article explores the legal framework and challenges involved in the enforcement of foreign judgments in Kuwait. As business enterprises and cross-border transactions continue to expand in Kuwait, it has become increasingly common that litigation commences in one jurisdiction, and the judgment thereof be sought to be enforced in another. Given that Kuwaiti courts are sometimes reluctant to enforcing foreign judgments, many foreign parties are challenged by significant obstacles when attempting to do so in Kuwait. This is especially since foreigners may not necessarily be familiar with the manner in which Kuwaiti courts would interpret the conditions necessary for enforcing such judgments. Case precedents demonstrate that the reciprocity requirement is typically the most considerable challenge for applicants seeking enforcement. For that purpose, we will examine key points, vested in relevant conventions, local laws, and case precedents.

Navigating the Legal Landscape: Enforcing Foreign Judgments as per the Domestic Law

The enforcement of foreign court judgments in Kuwait is primarily governed by the Civil and Commercial Procedures Law No. 38 of 1980 (“the Law”). Article 199 thereof outlines the conditions and procedures for enforcement, covering reciprocity, due process, res judicata, and compliance with Kuwaiti public order and general morals.

Specifically, article 199 of the Law stipulates that “Court Judgments and orders of a foreign state are enforceable in Kuwait in accordance with the conditions provided for by the laws of that foreign state regarding the enforcement of court judgments and orders issued in Kuwait. An exception therefrom are judgments and court orders issued in Favor of a natural or a juridical Kuwaiti person required to be enforced upon assets owned by a Kuwaiti natural or juridical person.

An application to enforce a judgment shall be submitted before the Head of the Enforcement Department of the Regional Court (High Court) in the regular manner for filing proceedings. Enforcement shall only be ordered after the following conditions are met:

1. The judgment or order is rendered by a court of competent jurisdiction as per the law of the jurisdiction in which it was issued;
2. The parties in the lawsuit for which the foreign judgment was issued had been duly summoned to appear, and were properly represented in the proceedings;
3. The judgment or court order is final (res judicata) according to the law of the jurisdiction in which it was issued; and
4. The judgment does not contradict any prior judgment or order previously rendered by Kuwaiti courts, and does not conflict with general morals or public order of Kuwait.”

These conditions generally address the due process of issuing the judgment. They are requirements intended to ensure that the judgment is issued in complete fairness to the parties involved. Most importantly, the parties must have been duly represented and notified in the lawsuit, and the judgment itself needs to be final and not subject to any rights of appeal. Practically, all these conditions – which need to be proven in front of the court – do not face any challenges for the party requesting enforcement. The enforcing party is usually concerned with proving reciprocity in front of the court.

Reciprocity refers to the mutual recognition and enforcement of judgments between countries. This means that the enforcement of foreign judgments in Kuwait is permissible on the same conditions as stipulated in the law of the issuing country regarding the enforcement of court judgments and orders issued in Kuwait. In other words, the country where enforcement is sought (i.e. Kuwait) checks whether the country issuing the judgment (i.e. the foreign country) enforces the judgments of the country where enforcement is sought (i.e. Kuwait). If the issuing country does so, then the enforcement shall be conducted based on the same conditions of the issuing country (foreign country) enforces Kuwaiti judgments.

The first paragraph of article 199 above provides that the primary prerequisite to enforce a foreign judgment is reciprocity. Typically, reciprocity is either proved by a bi-lateral or multi-lateral treaty stipulating the reciprocal treatment between the member states in recognizing and enforcing court judgments, or by case precedents where adequate evidence proves that a higher Kuwaiti court, such as the Court of Cassation, has previously recognized and enforced judgments from the relevant foreign country.

Enforcement Procedures

Other specific requirements for an application for enforcement is the payment of a filing fee, the submission of an original copy of the foreign judgment or a certified original copy thereof, as well as a certified translated Arabic version (if the judgment is in a foreign language). The Kuwaiti court then ensures the fulfilment of all the conditions, and appends the judgment with an official exequatur without conducting a de novo review of the merits of the foreign judgment. Hereby, this foreign judgment shall be deemed as if rendered by a Kuwaiti court, and may be enforced by the same means as a Kuwaiti judgment.

Key International Conventions

To promote cooperation and streamline the recognition of judgments across borders, Kuwait is a party to several international conventions that facilitate the enforcement of foreign court judgments. The Riyadh Convention (1983), which is signed between 18 Arab countries, entered into force in Kuwait in 1985, sets out the requirements for recognition and enforcement of court judgments and arbitral awards among and between the Arab states, and co-operation between the Arab judicial authorities.

As a member of the Gulf Cooperation Council (“GCC”) countries, Kuwait – besides Bahrain, Qatar, Oman, UAE, and Saudi Arabia – is further a signatory to the GCC Convention for the Execution of Judgments, Delegations and Judicial Notifications (1995). Article 1 thereof stipulates that each of the GCC countries shall execute the final judgments issued by the courts of any member states if the relevant conditions are fulfilled. It is noteworthy that this convention takes into consideration the principles of Islamic Shari’a, as article 2 thereof establishes that the enforcement of a judgment shall not violate the provisions of Islamic Shari’a. It further holds that a judgment may not be enforced if it is issued against the government of the state where the judgment is required to be executed or against one of its officials for acts done by such officials during or only due to the performance of the duties of their job.

It is worth mentioning that Kuwait has ratified in 2002 the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters of 1971“2019 Judgments Convention”. However, Kuwait has not signed the relevant necessary supplementary instruments. The Hague Convention is, therefore, not applicable in Kuwait in the context of enforcement of foreign judgments.

UK Case Precedent and Reciprocity

A key case precedent in Kuwait has shaped the approach of Kuwaiti courts in establishing reciprocity for enforcing foreign judgments from the UK. In a Kuwaiti Case precedent regarding the enforcement of a foreign UK judgment (hearing dated 1 November 2004, Appeal No. 813 of 2003, Commercial Circuit), fundamental notions concerning reciprocity were established. Notably, enforcement of a foreign judgment is neither a tier of litigation, nor an appeal against the judgment. Thereby, the competent judicial authority in the country where enforcement is sought may not look into the merits of the case. Thus, granting an exequatur shall be exclusively dependent on the presence of the requirements set forth by article 199 of the Law. The precedent also stipulated that assessing whether the reciprocity principle is present or not is a matter of fact that has to be decided by the competent court so long as its judgment is based on reasonable grounds.

It was further established in the precedent that an affidavit by the attorney general of the relevant foreign country denoting that Kuwaiti judgments are recognized in the foreign jurisdiction could suffice to prove the reciprocity principle. This precedent can be helpful when enforcing judgments of other jurisdictions, as an affidavit or a similar instrument issued by a judicial authority to serve as a significant tool for evidencing that the courts of the foreign jurisdiction follow a similar legal process for enforcing the judgments of Kuwaiti courts.

Authors: Ashraf Hendi, Partner Head of Banking and Finance, Maryam Tarek, Associate.