Judgment: Kuwait Court of Appeal Judgment, Appeal No. 683-2021
Omar Al-QahtaniPartner,Head of Litigation - Kuwait
This article discusses a recent Kuwaiti judgment (Kuwait Court of Appeal judgment, Appeal No. 683-2021) in relation to the enforcement of a UAE arbitral award in Kuwait in circumstances where the award debtor sought to challenge the award on the asserted basis that the award was not final and that he was not duly notified thereof.
In summary, in order for foreign judgments and arbitral awards to be enforced in Kuwait they must meet the conditions set out in the Kuwaiti Civil Procedure Law. At the outset, a distinction must be made between judgments issued by foreign courts and awards issued by arbitral tribunals, as each must follow a different process.
Article 199 of the Kuwaiti Civil Procedure Law provides:
“Orders and judgments of a foreign state are enforceable in Kuwait under the same conditions provided for in the law of the foreign state for the enforcement of orders and judgments of the State of Kuwait. The enforcement order shall be applied for before the Plenary Court in the normal manner of filing proceedings. Enforcement shall only be ordered after the following conditions are satisfied:
The judgment or order was issued by a court of competent jurisdiction according to the law of the jurisdiction in which it was issued;
The parties in the action in which the foreign judgment was issued had been duly summoned to appear and were duly represented at the proceedings;
The judgment or order is res judicata according to the law of the jurisdiction in which it was issued; and
The judgment does not contradict any prior judgment or order rendered by Kuwaiti courts and does not contain anything in conflict with general morals or public order of Kuwait.”
Therefore, under Article 199 of the Civil Procedure Law, where he applicant for enforcement of a foreign judgment or award proves that the judgment or award (i) was issued by a court or arbitral tribunal of competent jurisdiction according to the law of the jurisdiction in which it was issued, that the parties were duly summoned to appear and were duly represented, (ii) is res judicata according to the law of that jurisdiction, and (iii) does not contradict any prior judgment rendered by Kuwaiti courts and (iv) does not contain anything in conflict with general morals or public order of Kuwait, a rebuttable presumption shall arise in favour of the applicant for enforcement that the judgment is enforceable.A party wishing to avoid enforcement must present evidence to rebut the presumption that the arbitral tribunal was established pursuant to the parties’ agreement and show that the judgment has not yet become binding on the parties, or has been set aside or its enforcement stayed by a competent authority of the jurisdiction in which, or under the law of which, that judgment was issued.
It is further settled that an application to enforce a judgment rendered in a foreign jurisdiction is not a tier of litigation or challenge to that judgment.
It is further settled that an application to enforce a judgment rendered in a foreign jurisdiction is not a tier of litigation or challenge to that judgment. The competent judicial authority of the jurisdiction where enforcement is sought may not conduct a de novo review of the merits and the applicant for enforcement does not have to enclose a certificate confirming that the parties were duly served before the forum that issued the judgment to be enforced, unless it is a default judgment.
In this case, the Respondent commenced a DIAC arbitration claim in Dubai, UAE and obtained a favourable award against the Appellant, who was domiciled in Kuwait. The Respondent proceeded to file a separate case before the competent courts of Kuwait, to request the issuance of a judgment recognising the DIAC arbitration award and allow for its execution in Kuwait.
The Kuwaiti Court of First Instance accepted the request and issued its judgment recognising the award and deemed it enforceable. In its judgment the Court referred to Article 199 of Civil Procedure Law, which, as noted earlier, governs the execution of judgments and orders issued in a foreign country.
The Appellant appealed the judgment of Kuwaiti Court of First Instance, contending that the Court erred in law on the basis that that the conditions of Article 199 were not met as the award was not final and that the Appellant was not duly notified of the same because the Respondent did not follow the statutory procedure for service.
The Kuwait Court of Appeal held the parties (Appellant and Respondent) were duly summoned to appear and were duly represented before the Courts of First Instance and Appeal, that the award in Arbitration Case No. 41-2014 was res judicata according to the law of said jurisdiction, and that it is not contrary to general morals or public order.
The Court of Appeal considered Article 199 of the Civil Procedures Law as well as Article 1 of Law No. 44 of 1998, by which Kuwait ratified the GCC Convention for the Execution of Judgments, Delegations and Judicial Notifications which allows execution of judgments issued in GCC Countries such as the UAE. As all the conditions specified under Article 199 were met, the Kuwaiti Court accepted the Respondent’s request in this case to enforce the award. The Court of Appeal further refuted the grounds of appeal for lack of evidence.
Therefore, the Court of Appeal upheld the initial ruling of the Court of First Instance.
The judgment of the Court of Appeal is subject to appeal before the Kuwait Court of Cassation and therefore the final outcome is subject to change. However, it does demonstrate a positive approach to the recognition and enforcement of foreign judgments and awards pursuant to Article 199 of the Civil Procedures Law and provides guidance for those who wish to enforce a foreign award in Kuwait.
For further information,please contact Omar Al-Qahtani.
Published in January 2023
