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Copyright © International Chamber of Commerce (ICC). All rights reserved.
( Source of the document: ICC Digital Library )
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
2. Date of entry into force of the New York Convention
27 July 1978.
(Source: Decree No. 10/1978.)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
Kuwait has made a reciprocity reservation under the New York Convention. However, Kuwaiti legal provisions on the recognition and enforcement of foreign awards apply to awards rendered abroad, whether or not they are rendered in a New York Convention Contracting State.
(b) commercial relationships?
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?
The term 'foreign award' refers only to awards rendered outside Kuwait. No awards rendered in Kuwait can be considered as foreign.
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; Decree No. 10/1978; Code of Civil and Commercial Procedure (CCP).
C. Limitation periods (time limits)
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
(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 foreign judgment.
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
The court of first instance (Al Mahkamah Al Kolliyah).
(Source: CCP, Art. 199.)
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.)?
When enforcing a foreign judgment or order the Kuwaiti courts require that:
(i) the judgment or order was rendered by a competent court according to the law of the country where it was rendered;
(ii) the parties to the case to which the foreign judgment or order relates were summoned to appear and were duly represented;
(iii) the judgment or order has become final under the law of the country where it was rendered;
(iv) the judgment or order is not in conflict with an order or judgment already rendered by a court in Kuwait and does not contain anything that offends morality or public policy in Kuwait.
Subject to the above, the court will enforce a foreign judgment in Kuwait under the same conditions as the foreign country would enforce Kuwaiti judgments in its jurisdiction (reciprocal treatment).
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The first decision granting or denying the recognition and enforcement of an award is obtained through inter partes proceedings.
(Source: CCP, Arts. 199-200.)
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
(b) How many levels of appeal or recourse are available against this decision?
Two, as a general rule: first to the court of appeal, then to the court of cassation.
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 (one month) for filing an appeal against the decision of the court granting enforcement of the foreign award.
(Source: CCP, Art. 192.)
However, it is possible to obtain provisional execution against assets in Kuwait, if ordered by a Kuwaiti judge. In such circumstances, execution against assets maybe obtained immediately upon official notification to the other party.
(Source: CCP, Arts. 222-226.)
E. Evidence required
(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 following evidence must be supplied: (i) the arbitration award, (ii) the arbitration agreement and (iii) evidence to prove that the award is final and enforceable in its country of origin.
(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 (i) the award in its entirety and (ii) the arbitration agreement in its entirety.
(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?
(e) Does the authority or court keep the originals that are filed?
Yes. The first instance court keeps the originals that are filed, unless a written and reasoned request for their return is submitted to the judge.
(a) Is it necessary to provide a translation of the documents supplied?
(Source: CCP, Arts. 74 and 183.)
(b) If yes, into what language?
(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 documents supplied must be translated by a sworn translator.
(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 documentation which has to be submitted.
F. Stay of enforcement
(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?
The court may stay legal proceedings pending the outcome of an application to set aside or suspend the foreign award, but there appears to be no precedent for such an order.
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
There is no precedent for such an order.
(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 general, hearings are not confidential. The court can make such hearings confidential at the request of one of the parties.
(Source: CCP, Art. 64.)
(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. The practice in Kuwait is to remove all names from published judgments.
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)?
Kuwaiti law does not address this point directly. In principle, there is nothing limiting a court's power to recognize and enforce non-monetary relief awarded in a foreign arbitral award, where the court has jurisdiction to grant such relief.
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 may only grant or deny recognition of an award as a whole. However, when parties have a decision granting enforcement, it is possible for them to seek execution of the award in part.
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?
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.)?
Abdul Rahman R. Al Haroun