A. The Contracting State and the New York Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

The State of Kuwait.

2. Date of entry into force of the New York Convention

The New York Convention became a part of the Kuwait legal system by virtue of Decree No. 10 of 1978, which was enacted on 27 July 1978.

3. Has any reservation been made under Art. I(3) of the New York Convention regarding:

(a) reciprocity?

Kuwait made a reciprocity reservation in respect of the enforcement of foreign arbitral awards in Kuwait. Such reservation is reflected under Art. 199 of the Code of Civil and Commercial Procedures (the ‘CCCP’). The reciprocity reservation does not extend to local arbitral awards (i.e. issued in Kuwait).

(b) commercial relationships?

No.

4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?

Arbitral awards issued within the State of Kuwait are considered as local awards. Only awards rendered outside Kuwait are considered as foreign awards.

B. National sources of law

5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?

New York Convention as enacted by Decree No. 10 of 1978 in addition to the CCCP.

There are also bilateral and regional treaties and conventions entered into by Kuwait in respect of the enforcement of courts judgments and arbitral awards (i.e. the Riyadh Convention on Judicial Cooperation between the States of the Arab League and the Gulf Cooperation Council Convention for the Execution of Judgments, Delegations and Judicial Notifications).

Limitation periods (time limits)

6.

(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?

Yes.

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

15 years, from the date of issuance of the award.

D. National courts and court proceedings

7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?

Applications for the recognition of foreign arbitral awards must be filed before the Court of First Instance (Al Mahkamah Al Kulliyah) in accordance with Art. 199 of the CCCP.

8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?

According to Arts. 23 and 24 of the CCCP, the Kuwaiti Courts shall assume jurisdiction over disputes filed against Kuwaitis and/or foreigners who have a domicile or place of residence in Kuwait, or which relate to an asset located in Kuwait. As such, whenever the enforcement action involves a Kuwaiti or legal/natural person who is residing in Kuwait, the Kuwaiti Courts shall accept jurisdiction.

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

In accordance with Arts. 199 and 200 of the CCCP, the first decision granting or denying the recognition and enforcement of a foreign award is to be obtained through inter partes proceedings.

10.

(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

Yes.

(b) How many levels of appeal or recourse are available against this decision?

The decision of the First Instance Court is subject to two levels of appeal: before the Court of Appeals and before the Cassation Court. The Appeal Court’s judgment is final and enforceable unless such judgment is stayed by the Cassation Court.

11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?

As a general rule, if no appeal is filed, execution against assets in Kuwait may be obtained after the expiry of the prescribed time limit (i.e. one month) for filing an appeal against the decision of the court granting enforcement of the foreign award.

According to Arts. 199 and 200 of the CCCP, the enforcement and recognition of foreign arbitral awards require the filing of an application before the Court of First Instance.

  1. If the Court of First Instance grants enforcement and such decision is not appealed, the award will be stamped with the writ of execution, which will allow the claimant to immediately commence attachment of the other party’s assets.
  2. If the judgment of the Court of First Instance is appealed, the claimant will not be able to seek attachment of the other party’s assets, until the issuance of the Court of Appeal judgment upholding the Court of First Instance decision. Upon the issuance of the Court of Appeal judgment, the claimant may immediately commence the attachment procedures, notwithstanding any appeal before the Court of Cassation, as judgments issued by the Court of Appeal are final and immediately enforceable, unless the Court of Cassation stays the proceedings.

Precautionary attachment orders may be obtained from the Execution Judge on the basis of the foreign arbitral award in accordance with Arts. 222 to 226 of the CCCP, notwithstanding that the award is being challenged before Kuwaiti courts. The precautionary attachment application is made ex parte and if granted, attachment procedures would be implemented immediately upon the notification of the other party. However, precautionary attachment is subject to the discretion of the court.

E. Evidence required

12.

(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing the arbitration clause, affidavits, witness statements, etc.)?

The enforcement of a foreign arbitral award in Kuwait requires the submission of the following:

  1. Legalized arbitral award (by the Kuwaiti embassy in the country where the award was obtained).

  1. Certificate issued by the relevant arbitration institution (or ad hoc arbitral tribunal) confirming that the arbitral award is final and not appealable. Such certificate must also be legalized by the Kuwaiti embassy in the country of issuance.

  1. A copy of the arbitration agreement.

(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?

It is necessary to provide the court with full copy of the arbitral award and the arbitration agreement.

(c) Are originals or duly certified copies required?

Either the original or certified copies of the same are required.

(d) How many originals or duly certified copies are required?

Only one original or certified copy is required.

(e) Does the authority or court keep the originals that are filed?

Yes, the Court of First Instance keeps the original documents, unless a written request for their return is submitted to the judge.

13.

(a) Is it necessary to provide a translation of the documents supplied?

Yes, in accordance with Arts. 74 and 183 of the CCCP.

(b) If yes, into what language?

Arabic.

(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?

The award and other required documents must be translated and certified by the official translator (at the Translation Department of the Notary Public Office, Ministry of Justice).

(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?

It is necessary to provide a full translation of the required documents.

F. Stay of enforcement

14.

(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?

Yes, the court may decide to stay the enforcement proceedings pending the outcome of the application to set aside the award.

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

No other grounds.

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

As per Art. 133 of the CCCP, the Cassation Court may stay the enforcement of the arbitral award upon provision of security/guarantee. However, we are not aware of any precedents in this respect.

G. Confidentiality

15.

(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?

The arbitral award and the arbitration agreement/clause as filed do not form part of the public record.

(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?

In accordance with Art. 64 of the CCCP, Court hearings are publicly held. However, the court may decide that such hearings be confidential at the request of one of the parties.

(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?

Any judgment may be published in periodicals in Kuwait. However, it is customary to remove the names of the parties from the published judgment.

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

It is not possible to obtain recognition and enforcement in Kuwait of interim or partial decisions made by arbitrators, as opposed to final awards.

17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?

The CCCP does not include provisions prohibiting a party from enforcing non-monetary relief. However, the enforcement of such relief has to comply with the requirement provided under Art. 199 of the CCCP.

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

As a general rule, the court will grant or deny recognition of an award as a whole. However, if partial recognition is requested by the litigants, the same could be granted by the Court. For instance, if the award includes certain issues that would conflict with public policy rules in Kuwait, the court would allow the enforcement of the award after setting aside the conflicted issues.

19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?

In compliance with Arts. 199 and 200 of the CCCP, an award that has been set aside at the place of arbitration cannot be recognized or enforced in Kuwait.

20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?

No.

Country Rapporteur: Ibrahim Sattout, Adnan Gaafar