An Introduction:

The implementation of the judgements of foreign courts in Kuwait is subject to the legal regulation mentioned in the Kuwaiti Civil and Commercial Procedures Law No. (38) of 1980, in accordance with Article No. (199), amended by Law No. (38) Of 2007, provided that:

"The order of the implementation of the provisions and orders issued in a foreign country in Kuwait is permissible, in accordance with the conditions provided in this state to implement the provisions and orders issued in Kuwait. The provisions and orders issued in favor of a Kuwaiti natural or legal person required to be implemented on funds owned by a Kuwaiti natural or legal person are excluded from these conditions. Implementation before the plenary court in the usual conditions for filing a Lawsuit, implementation may not be ordered except after verification of the following:

1. The sentence or order is issued by a competent court in accordance with the law of the state of issuance.

2. The litigants in the Lawsuit of the issued foreign sentence have assigned the attendance and performed a correct performance.

3. The sentence or the force of res judicata in accordance with the law of the issuance court.

4. There is no conflict with a sentence or order previously issued by a court in Kuwait and does not include anything that violates morals or public order in Kuwait.

 

We note that it is also permissible to implement the provisions of arbitrators, officially documented foreign documents and bonds in Kuwait with conditions that do not differ significantly from the conditions of the implementation of foreign judgments. In this article, we include the sentences and procedures of implementation the foreign sentences in Kuwait, then the presentation of the orientations of the Kuwaiti judiciary.

First: A writ Lawsuit of foreign sentence in Kuwaiti in the Kuwaiti executive formula:

1. File the Lawsuit to the competent Court.

The procedures for implementing the foreign sentence in Kuwait starts with filing a writ Lawsuit of the foreign sentence in a Kuwaiti executive formula to the competent Court in Kuwait, in accordance with the type of foreign sentence, whether it is issued by civil, commercial, family or other Courts. Provided that the Lawsuit shall include all the data of the foreign sentence, such as the number, the court of issuance, the operative part of the sentence and the outcome of the sentence in the higher levels of litigation, with presenting the date in which the sentence becomes final and enforceable, the foreign sentence shall be with the writ of execution appended in accordance with the rules of the state of issuance, and the foreign executive formula is considered a presumption that the sentence is enforceable, even if some Kuwaiti courts require that a sentence of discrimination or a certificate of non-discrimination of judgment be presented, in rare cases.

Although discrimination does not stop the implementation procedures in most judicial systems.

1. The litigate of Director of the Implementation Department in his capacity:

In a writ Lawsuit appending the foreign judgment in the executive formula, as well as the main litigant in the Lawsuit, the Director of the Implementation Department shall be litigated in his capacity in order for the sentence to be issued against and to be obligated to take the procedures of enforcement against the opponent implementing the foreign sentence.

1. The Docket:

In the first session specified for the consideration of the Lawsuit, a document docket containing the original foreign sentence to be implemented in Kuwait shall be submitted, appended in the implemented formula in accordance with the procedures and special rules in the state of issuance, it is noted that the foreign sentence issued by the court of first instance, shall present a statement of the final sentence or the absence of an appeal against, if the foreign sentence is an appeal, the original sentence of the first instance shall be submitted with, and what indicates that there is no appeal against before the Court of Cassation, as some Kuwaiti civil court departments require, but if the sentence is final and issued by a Court of Cassation, in this case the sentence of the first instance shall be attached with the appeal sentence.

 

1. Sentencing to append the foreign sentence in the implementation formula.

Upon the issuance of the Kuwaiti sentence to append the foreign sentence in the implementation formula, it is necessary to wait for the period of appeal against, a month from the date of issuance, but if it is challenged by appeal, the implementation shall be in accordance with the appeal sentence, without the need to wait for the period of appeal for cassation that takes sixty days , as the appeal of cassation in Kuwait does not stop the implementation, that means the possibility of taking the implementation procedure by virtue of the appeal.

1. Declaration of the implementation formula in Kuwait:

After the Kuwaiti sentence issued by appending the foreign sentence in the implementation formula, this sentence shall be sealed with the implementation formula, as the foreign sentence shall be stamped in the Kuwaiti implementation formula, next to the foreign implementation formula issued by the state of the sentence, after which the discount shall be announced in both of the forms mentioned in the Kuwaiti sentence and foreign sentence.

This shall be followed by forced implementation procedures in Kuwait, that include preventing the losing party from traveling, seizing and bringing to the implementation judge, preparing for imprisonment for a period not exceeding six months, seizing his movable and real estate funds in accordance with the legal conditions.

1. Equalization of foreign currency:

Kuwaiti law did not provided that the foreign currency shall be equated with the Kuwaiti currency upon implementing foreign sentence. The principal is implementation and payment in foreign currency, unless both of the parties agree that the payment be in Kuwaiti Dinars. In this case, the competent implementation judge addresses the central bank to the foreign currency equivalent in the Kuwaiti currency in the date agreed upon between the litigants.

Second: The Kuwaiti Judicial attitudes towards the implementation of foreign sentences:

In the implementation of foreign sentences in Kuwait, the Kuwaiti judiciary is divided into two attitudes. The first: Stricter scrutiny of the availability of the conditions for the implementation of foreign sentences as they appeared in the provision, the second reduces the severity of the conditions contained in the legal provision, provided the reciprocity in the foreign state. On the other hand, both of the attitudes agree that it is not permissible to implement foreign sentences that violate morals and public order in Kuwait, we shall consider the Kuwaiti sentences issued in this regard.

First attitude: Stricter scrutiny of the availability of the conditions as stated in the legal provision:

The first attitude goes to the necessity for the foreign sentence to be issued from a competent court, in accordance with the law of the foreign state, and for the litigants to declare the Lawsuit correctly, as these provisions were as follows:

1. The foreign sentence, even if it forced of res judicata sentence, is not permissible to order the implementation in Kuwait except through the procedures and conditions provided in Article (199).

(Two appeal of cassations (195, 200/2002, Session of 22/2/2002)

1. Sentences and orders issued from a foreign state implemented in Kuwait. Its condition: To be the same conditions provided in the law of this state to implement the sentences issued in Kuwait, the condition of reciprocity. To issue the sentence from a competent court in accordance with the law of the state of issuance. The litigants to be assigned to appear and be performed correctly. The sentence to be forced of res judicata in accordance with the law of the court of issuance. Not to be inconsistent with a previous sentence issued from the Kuwaiti courts. Not to be contrary to public order and morals.

The Second Attitude –Legal Conditions Mitigation:

The second Attitude is that the Kuwaiti Court competent of the Implementation of Foreign Sentences in Kuwait is not a court challenging the foreign Sentence.  The Kuwaiti Court is not a degree of litigation. Therefore, the Kuwaiti Court is not entitled to examine the subject of the Foreign Sentence. The Kuwaiti Court is not entitled to qualitatively or locally verify the jurisdiction of the foreign court. This mitigates the conditions mentioned in Article 199 and facilitates the Implementation of Foreign Sentences. The provisions of this trend are as follows:

1. To request the implementation a sentence issued by a foreign country. It is not a degree of litigation or an appeal against the sentence. The competent Judicial Authority in the Requested Implementation Country is not entitled to search the matter. The Country Court in which the sentence shall be implemented is not entitled to verify that the court that issued the sentence was qualitatively or locally competent to settle the dispute.

(Appeal of Cassation 2001/230, Personal Status, Session of 8/ 6/ 2002)

1. Challenging the competent judicial authority in the Requested Implementation Country is inadmissible. Attaching a certificate to announce the litigants before the authority that issued the judgment is not necessary, unless the sentence is in absentia. The procedures were correctly executed.

(Appeal of Cassation 2002/842, Commercial, Session of 18/ 10/ 2003)

 

The Third Attitude – The parties’ agreement to reject the implementation of acts that contradict morals and public order:

The parties agree that the public interest of society shall be superior to the interests of private individuals. Therefore, individuals are not entitled to agree among themselves on acts that contradict public order, even in the case that these acts achieve special gains for them. Agreement on usurious interests in civil transactions, debt due to gambling, or the sale of alcohol, drugs and other prohibitions in Kuwaiti law shall be considered contrary to public order, As to this Attitude the following sentence was issued:

A Foreign Sentence or Order, within what is required for its implementation in Kuwait, shall not include acts that contradict morals or public order, under the Kuwaiti law. The reasons: are that benefits, whether it is an agreement or legal, in exchange for the debtor's use of a sum of money, or the penalty for delay in fulfilling the obligation to it is not permissible, under Article 305, civil, a civil debt in which interest is not permissible.

(Appeal of Cassation 2005/835, Commercial, Session of 5/ 12/ 2006)

Conclusion:

With the expansion of financial transactions between individuals and companies and exceeding geographical boundaries, it became necessary to know the rules and procedures for Implementation of Foreign or National Sentences in other countries. Despite that these procedures are easy, we do not advise individuals to initiate them except through a specialized lawyer in the country in which the sentence shall be implemented, to avoid any error in the procedures that hinder or prevent the implementation of the sentence.

Whatever the judicial direction in Kuwait as to Implementation of Foreign Sentences, this lawsuit usually takes a period of time between four to six months. We consider this period is an appropriate compared to other judicial systems.