KUWAIT Law and Practice Contributed by: Dr Fawaz Alkhateeb, Taher Group Law Firm Co
vention on the Recognition and Enforcement of Foreign Arbitral Awards. The New York Conven- tion became part of the Kuwaiti legal system by virtue of Decree-Law No 10 of 1978 Kuwait’s arbitration is governed by specific pro- visions under the Judicial Arbitration in Civil and Commercial Matter Law, Law No 11 of 1995 as amended by Law No 12 of 2013 (the “Judicial Arbitration Law”), and the Kuwaiti Civil and Com- mercial Procedures Law (KCCPL or the “Proce- dures Law”), Articles 173 to 188. Kuwaiti law allows parties to choose arbitration as a dispute resolution method. Article 173 of the KCCPL sets out the formalistic requirements for a valid arbitration agreement. These require- ments include specifying the disputes subject to arbitration, expressing the agreement in writing, and ensuring that the parties have the capacity to dispose of the litigated right. Courts should generally decline jurisdiction over disputes designated for arbitration. However, there can be complications that lead Kuwaiti courts to set aside the arbitration agreement. Grounds for refusal include issues such as the incapacity of a party, procedural violations, or the award being contrary to public policy. Article 199 of the Kuwaiti Civil and Commer- cial Procedures Law outlines the conditions for enforcing foreign judgments, including that the judgment must be issued by a competent court and not conflict with the principles of Kuwaiti law, public order or morality. 13.2 Subject Matters Not Referred to Arbitration Under Kuwaiti law, arbitration agreements are governed by Article 173 of the Kuwaiti Civil and Commercial Procedures Law (KCCPL), which
sets out certain rules that may exclude a mat- ter from being arbitrated. In essence, Article 173 sets specific conditions for valid arbitration agreements, such as the requirement for a writ- ten agreement and the need to define the scope of the matters subject to arbitration clearly. The law also excludes certain disputes from arbi- tration, including criminal and labour matters. However, disputes arising from commercial agency and distributorship contracts are gener- ally accepted for arbitration in Kuwait. 13.3 Circumstances to Challenge an Arbitral Award Under certain conditions, parties in Kuwait have the right to challenge an arbitral award in the country’s courts. The following are common grounds for contesting an arbitral award: arbitral jurisdiction; procedural irregularities; award con- trary to public policy; failure to provide proper notice or participation; award in a non-arbitrable matter; arbitration process procedural flaws; award is not yet binding; and manifest error in the award. 13.4 Procedure for Enforcing Domestic and Foreign Arbitration In Kuwait, there are different procedures for enforcing domestic and international arbitration awards. The steps for enforcing both types of awards are outlined below. Domestic Arbitration Award Enforcement • Request for enforcement – the party seeking enforcement of a domestic arbitration award should file a request for enforcement with the appropriate court. This is usually the Com- mercial Circuit of the Court of First Instance in Kuwait. • Application form – the applicant must submit a formal application, and the arbitration award and agreement.
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