Litigation 2024 Comparisons

Kuwait’s legal system combines elements of civil law and Islamic law (Sharia). It is characterised by a comprehensive legal code influenced by French and Egyptian legal systems, with Sharia particularly affecting family and personal status matters. The system follows an adversarial approach, features both oral and written proceedings, and has a written constitution. Legal representation by lawyers is common, and the court system is hierarchical with specialised courts. Mediation and conciliation are encouraged, and efforts have been made to modernise commercial and financial laws. Arbitration is also recognised as an alternative dispute resolution mechanism.

Kuwait’s court system covers a wide range of subject matter jurisdictions, from civil and commercial cases to family and probate matters. The structure of Kuwait’s court system includes the following.

Court of Cassation (Mahkamat al-Tamyeez)

This is the highest court in Kuwait, serving as final court of appeal. It primarily deals with reviewing cases on points of law, including constitutional issues. Decisions of the Court of Cassation are final and binding.

Courts of Appeal (Mahkamat al-Istinaf)

These intermediate appellate courts review decisions made by lower courts, primarily the courts of first instance, and examine the legal and factual aspects of cases. There are separate Courts of Appeal for civil and criminal matters.

Courts of First Instance (Mahkamat al-Darajah al-Ula)

These are the trial courts where cases are initially heard. They handle a wide range of cases, including civil, criminal, family, and commercial matters.

Specialised Courts

In addition to the general courts, Kuwait also has specialised courts, including administrative courts that deal with cases involving government actions, and family courts.

Commercial Courts

Commercial disputes are typically heard in separate commercial courts, which have specialised judges with expertise in commercial and business matters.

Labour Courts

Kuwait also has labour courts to adjudicate employment-related disputes between employers and employees.

Small Claims Courts

These specialised courts handle smaller civil disputes involving limited monetary claims.

Sharia Courts

Sharia courts deal with personal status and family law matters, especially those related to Islamic law (Sharia).

Constitutional Court

Kuwait’s Constitution established a Constitutional Court, tasked with reviewing the constitutionality of laws and government actions. This court ensures that the country’s laws adhere to the principles of the Constitution.

As a rule, hearings are conducted publicly, thereby allowing anyone to attend. However, under certain conditions and in specific cases, the confidentiality of proceedings is often intended to safeguard the privacy and dignity of the individuals involved, particularly in family and personal status cases. In certain cases, parties involved in a dispute or legal action can request that specific information or documents remain confidential, especially when it involves sensitive financial, commercial or personal data.

Hearings can be held in private court sessions, or in a judge’s chamber when appropriate, to ensure confidentiality. The documents related to the hearings are not made available to the public. Nevertheless, legal precedents are regularly issued after the names of the parties involved have been redacted.

In Kuwait, legal representatives, including lawyers, must adhere to specific requirements before they are permitted to appear in the country’s courts. The legal profession in Kuwait is regulated, and there are specific rules and criteria that legal representatives must follow. Kuwaiti lawyers must be members of the Kuwait Lawyers Society, while foreign lawyers usually have limited rights of audience. Foreign law firms cannot establish offices or appear in court and must instead collaborate with local law firms.

Third-party funding for litigation is permissible. Entities such as insurance companies can finance the litigation process as outlined in their agreements with insured parties.

Kuwait does not yet have specific legislation or regulations in place addressing litigation funding by third-party funders. The absence of clear regulations indicates that third-party litigation funding arrangements are generally not common or are not expressly regulated.

There are no explicit legal restrictions on third-party litigation funding in Kuwait. However, liability for costs incurred by the other side may be subject to the specifics of the agreement between the third-party funder and the litigant.

Given the absence of regulation on the subject matter, funding either the plaintiff or defendant is presumably permitted in Kuwait.

No restrictions exist that govern the minimum and maximum amount a third-party funder will fund.

The costs that a third-party funder may consider funding in Kuwait will depend on the specific agreement between the litigant and the funder. It is fair to presume that the typical costs and expenses that exist in a funding arrangement will also be funded in Kuwait. Such cost categories would include legal representation fees, court application costs, expert witnesses cost, and the like.   

Contingency fees are permitted in Kuwait; however, they are not widely used in payment arrangements. A more frequent payment arrangement is a hybrid fixed fee and contingency model, wherein the law firm procures a fixed sum for its representation, in addition to a percentage amount from any settlement, usually, around 10–15%, although this may vary based on the law firm.

No time limits are established for obtaining third-party funding.

There are no particular laws or procedural regulations in Kuwait that compel parties to do any certain actions prior to filing a lawsuit or that dictate pre-action behaviour. Nonetheless, parties frequently engage in pre-action letters or talks to settle disagreements without going to court.

Parties may choose to actively participate in pre-action activities, such as drafting a pre-action letter, trying mediation, or settling the dispute through negotiation, even though there are no formal legal obligations. Although responding to a pre-action letter is not legally required of the potential defendant, it is frequently regarded as a wise move towards settling the issue.

While Kuwaiti law does not regulate pre-action conduct, parties should nevertheless exercise caution in how they behave during the dispute resolution procedure. If the case goes to litigation, the court’s opinion of the parties involved may be affected by their refusal to collaborate or participate in good-faith talks.

In addition, depending on the subject matter of the litigation, there may be specific and unique pre-action conduct that is required.

For instance, a creditor, in line with Article 167 of Law No 38 of 1980 pertaining to Civil and Commercial Procedures, is obliged to initially request the debtor to fulfil their commitment, providing at least a five-day notice period. After this period, the creditor should proceed to seek a performance order from either the judge responsible for partial matters or the head of the court division.

Notifications are pivotal in the initiation and continuation of a lawsuit against the defendant. Consequently, Decree-Law No 38 of 1980, which regulates limitation periods, was enacted to efficiently clarify this subject.

Starting with the notification process, Articles 4, 6, 9, and 17 assert that proper execution of the notification is fundamental to any litigation process. Failure to adhere to the procedures could lead to nullification of the litigation process.

Notification delivery is deemed valid only if received directly by the defendant at their personal residence (as listed on their Civil ID) or at their workplace. It can also be received by their legal representative, or family relatives residing at the same addresses.

If the defendant is not found at their workplace, the notice should be delivered to the company’s management representative. If the defendant is not in Kuwait, a diplomatic notification must be executed by the notification officer, as per Article 18.

Upon issuance of the verdict by a court of first instance, the appeal period commences on the day the verdict is notified to the defendant by the notification officer. Article 49 sets a 30-day period for submitting an appeal.

To submit an appeal before the Supreme Court in Kuwait, the Cassation Court, the appeal period commences on the day the verdict is notified to the defendant by the notification officer. Article 153 sets a 60-day period for submitting an appeal.

Regarding arbitration, according to Article 179, the arbitrator is obligated to notify both parties of the date of the first arbitration session within 30 days from the date of accepting the arbitration matter request. If the parties do not agree on a specific period for the verdict to be issued, the arbitrator must issue the verdict within six months from the date of notifying both parties about the arbitration.

Articles 24 through 36 of Decree Law No 38 of 1980, Concerning the Issuance of Commercial and Civil Procedure Law, outline the jurisdiction of Kuwaiti courts based on the value or type of the claim, as per the following provisions.

• Article 24 confers jurisdiction to Kuwaiti courts over disputes involving a foreigner (non-Kuwaiti) if they have a chosen domicile in Kuwait, if the lawsuit pertains to real estate or movable property located in Kuwait, or if it’s related to an obligation that has arisen, been implemented, or was obligated to be carried out in Kuwait. Kuwait’s jurisdiction also applies if the dispute involves bankruptcy declared in Kuwait, a marriage contract to be concluded by using a Kuwaiti notary, and to other situations.
• Article 25 allocates jurisdiction to Kuwaiti courts over inheritance matters if the estate was opened in Kuwait, if the heir is Kuwaiti, or if all or some of the estate’s assets are in Kuwait, and the heirs are all or some of them Kuwaitis, and the court where the estate was opened is not competent according to its law.
• Article 26 establishes the jurisdiction of Kuwaiti courts to adjudicate a case, even if it falls outside their jurisdiction, if the litigant explicitly or implicitly accepts their jurisdiction.
• Article 27 asserts that if a lawsuit is brought to Kuwaiti courts within their jurisdiction, they are also competent to decide on preliminary issues and interlocutory requests related to the original lawsuit.

In Kuwait, legal paperwork, filed by a party with the appropriate court to start a lawsuit, is called a “complaint” or “statement of claim”. The party’s claims, the case’s facts, and the requested relief or remedies are all outlined in this document. The initial complaint should provide the defendant and the court with a clear picture of the plaintiff’s case.

It is usually possible for a party to make changes to the document after the first complaint has been filed, particularly if there are any errors or omissions or if more information is required. The party must bring a motion to complete this correction. The specific court and stage of the proceedings will determine the rules and processes for amending a complaint. Before the court formally accepts the case for trial, the parties are usually permitted to make changes to their pleadings.

However, there can be restrictions or regulations in place that limit amendments, or the court’s permission may be required in some cases. It is therefore advisable to request an amendment to the facts, as soon as possible. 

The rules of service are a crucial component of the legal procedures in Kuwait, and their absence would negate a legal claim. The plaintiff (or his representative) is responsible to ensure the complaint and summons are properly served on the defendant.

The standard method of completing service is through personal service, in which a lawyer or court-appointed server personally serves the defendant with the papers. With the court’s approval, alternative measures like registered mail or publication may be utilised if personal service is impossible or has failed. 

A party may also be sued when outside of Kuwait. In such a case, the plaintiff must use the process indicated in The Hague Service Convention, an international convention that permits the service of legal documents between member countries.

In Kuwait, when a defendant does not respond to a lawsuit, the plaintiff can request a default judgment. The court assesses the plaintiff’s claims and evidence, and if they find merit, a default judgment is issued in their favour. The defendant can challenge the judgment by showing specific grounds, like lack of notice, or fraud. If the defendant doesn’t contest the default judgment, the plaintiff can enforce it to recover damages or the other remedies granted by the court.

In Kuwait, class action lawsuits, where one individual initiates legal proceeding on behalf of a group of others, are not recognised. However, Kuwaiti civil procedural law does acknowledge the concept of party joinder. Any person with a relevant interest in an ongoing case can become a party to the litigation. This joinder can occur either through the standard procedures for initiating a claim before the trial or by making an oral request to the judge during the hearing. Additionally, the judge has the authority to include a party in a case if it is deemed fair or necessary.

Kuwaiti law does not expressly compel attorneys to give clients an upfront cost estimate of probable litigation. However, it is customary for lawyers to go over the prospective costs and fees for legal service before starting a case. Such dialogue is a part of the client-attorney relationship. The purpose of this conversation is to manage the client’s expectations and ensure transparency about the payment terms, which may include contingency fees, fixed amounts, hourly rates, or a combination of the latter.

Interim petitions or motions may be filed in Kuwait before a claim’s trial commences, or final verdict is reached. These interim applications are frequently used in the legal procedure and have several uses. They can pertain to the following matters.

• Procedural issues – utilised for case management objectives, such as asking for time extensions, grouping cases, or demanding court orders pertaining to the litigation’s process.
• Injunctions – used to ask the court to make orders restraining conduct, or to require a party to take certain actions before the conclusion of a case proceeding.
• Preservation orders – used to secure assets or evidence during the litigation.
• Security for costs – used to ask for security for costs.
• Temporary orders – used to request the court to issue a temporary order regarding a substantive matter, that will be valid until the conclusion of the case.

In Kuwait, a party can request early judgment on some or all issues in dispute or seek to strike out the opposing party’s case before trial.

• Early judgment (summary judgment)– the process involves a motion, response, and court assessment to determine if there are no genuine factual disputes, and the law clearly favours one party. If so, summary judgment may be granted.
• Striking out the other party’s case – involves a motion to strike out the case, the response, and court evaluation. The court may strike a case if valid grounds are found, such as a frivolous or meritless case.

These determinations depend on factors like the presence of factual disputes, the clarity of the law, and proper notification procedures as per procedural law.

In Kuwait, dispositive motions are pre-trial applications used to resolve cases or specific issues. The court evaluates their merits and may grant or refuse them. Common dispositive motions include:

• summary judgment – seeks a decision on key issues without a trial when there are no factual disputes;
• motion to dismiss – aims to dismiss the case or claims for reasons like lack of jurisdiction or procedural errors;
• motion for judgment on the pleadings – seeks a decision based on written pleadings with no disputed facts;
• motion to strike – requests removal of irrelevant or improper allegations;
• motion to dismiss counterclaims or crossclaims – seeks dismissal of opposing party’s claims; and
• motion for default judgment – requests a plaintiff’s judgment based on the defendant’s default.

In Kuwait’s jurisdiction, mechanisms for involving third parties in ongoing proceedings or consolidating two sets of proceedings are governed by Law No 38 of 1980 pertaining to Civil and Commercial Procedures. Articles 84 to 88 detail the mechanisms by which third parties may participate in ongoing litigation.

Article 38 defines “Incidental requests” as motions directed by the plaintiff to the defendant, or vice versa, as well as claims made by a third party to either party. This is regarded as an intervention. The court has the discretion to permit the involvement of a third party in the proceedings as per the provisions in Article 86.

Moreover, any person with a vested interest may intervene in the case, either supporting one of the litigants or requesting a judgment for themselves, thereby joining the lawsuit as an independent third party, as outlined in Article 87.

Finally, as per Article 88, the court, even of its own accord, may permit the involvement of any party it deems necessary in the interest of justice.

Indeed, a defendant in Kuwait may file an application for an order directing the claimant or plaintiff to provide a certain amount of money as security for the defendant’s expenses. If the plaintiff’s claim is unsuccessful, a security for costs order serves to shield the defendant from the possible costs of litigation, including attorney fees and expenses. The court may grant this order if it finds that there is a reasonable suspicion that the plaintiff might not be able to pay the defendant’s expenses. The court will evaluate the application and consider the circumstances of the case before deciding whether to grant this order.

Like in many legal systems, the general rule in Kuwait is that “costs follow the event”. Legal fees, court fees, and other relevant charges could be included in these costs.

The intricacy of the application, the behaviour of the parties, and the nature of the issues in dispute are some of the variables that may have an impact on the court’s evaluation when deciding how much in costs to award. To discourage exploitation of the legal system, the court may impose extra fees or penalties on the party filing an application if it is determined to be frivolous or vexatious.

In Kuwait, the length of time it takes a court to consider an application or motion can vary based on several variables, such as the case’s complexity, the type of application, and the judges’ availability.

Also, there may be chances for appeals following a preliminary ruling on an application or motion, which could further lengthen the duration of the court case.

If a party believes that an application or motion requires urgent attention, to prevent irreparable harm, they can request that the court expedite its consideration.

Kuwait does not have a formal system of pre-trial discovery in civil cases similar to the extensive discovery procedures found in some other legal systems, such as the United States.

Instead, the process of obtaining evidence is often more reliant on the court’s involvement rather than being solely litigant-driven. During the initial stages of a lawsuit, parties in civil cases would submit to the court or its appointed expert all documents and evidence relevant to their case. The court would then manage and facilitate the process of evidence collection. Upon its own discretion, or a party’s request, the court may order the production of specific documents or information if it is considered necessary for the resolution of the case. In that sense, parties are expected to present their case and relevant evidence during the trial rather than engaging in extensive pre-trial discovery procedures.

It is equally uncommon to take witness testimony during the evidence-gathering process. Rather, during the trial, the court would have the purview to request the testimony of a witness.

With regards to scope and costs of the evidence-gathering process, the court once again plays an important role in that regard and can reject a party’s overly broad requests and assign costs.

In Kuwait, the process of obtaining discovery from a third party may be possible but is generally subject to specific legal procedures and the court’s discretion. The party seeking to obtain discovery from a “non-party” would apply to the court and provide grounds for why the discovery from the non-party is necessary for the case. 

However, there are some laws which provide confidentiality to certain information for third parties, such as: Article 112 of Decree Law No 38 of 1980 on the Issuance of the Civil and Commercial Procedures Law, which stipulates that deliberations in judgements are confidential among the assembled judges.

In Kuwait, there are no specific categories of documents that parties must disclose as part of a formal pre-trial discovery process. Instead, when filing a claim, parties are generally expected to submit the documents that establish the veracity of their claims or defences. This may include evidence of a debt owed, a wrong rendered, or any other relevant documents that support their case. As mentioned above, the court would then have a central role in evaluating and requesting evidence and facilitating the resolution of the case.

In Kuwait, the process of developing and admitting evidence in legal proceedings occurs during the trial and follows the procedural steps of exchanging statements. Parties are typically required to notify each other of the evidence and witnesses they plan to present. 

During the trial, the parties may call witnesses to testify, provide information and expert opinions, and may submit the relevant documents. Examination and cross-examination of witnesses take place during the trial. The court assesses the admissibility of evidence based on its relevance, reliability and legality, and maintains a record of the proceedings.

Kuwait recognises the concept of legal privilege, including attorney-client privilege and litigation protection. The purpose of these legal rights is to safeguard the privacy of specific correspondence and documents exchanged between clients and their legal counsel. Kuwait’s legal privilege doctrine usually reflects international legal norms. In addition, parties can rely on legal privilege for both external and in-house counsel, thereby offering a wider umbrella for the protections of legal privilege.

During legal procedures, a party may be permitted to withhold or not reveal a document under additional norms or circumstances. Typical guidelines or justifications for withholding a document include the following: privilege; irrelevance; confidentiality; national security or public interest; undue burden; and legislative barriers. Generally, parties wishing to withhold documents should file objections in line with the court’s processes.

In Kuwait, injunctive relief, also known as interim or provisional measures, may be granted in various situations to protect parties’ rights and to prevent irreparable harm. These include the following situations:

• asset preservation – to prevent the disposal of assets relevant to a judgment;
• prevention of parallel proceedings – to halt redundant legal actions in different jurisdictions;
• mandatory injunctions – to compel specific actions, such as providing documents;
• prohibitory injunctions – to forbid certain actions, like using intellectual property;
• non-disclosure injunctions – to prevent the disclosure of harmful information; and
• interlocutory injunctions – temporary measures to maintain the status quo during ongoing litigation.

The expediency with which injunctive relief can be acquired in Kuwait is contingent upon several elements, such as the particulars of the case, the volume of cases the court is handling, and the urgency of the request. Although Kuwait does not usually have the same “out-of-hours judges” system as some other countries, there are still ways to handle urgent cases quickly.

• Applications ex parte – a party may file an ex parte application with the court in situations of great urgency. If the court determines that the circumstances call for quick action, it may take such applications into consideration.
• Fast-tracked proceedings – certain types of applications, such as those for freezing injunctions or other urgent injunctive relief, may be subject to accelerated procedures in some courts.
• Court’s decision – the court may decide to expedite the issuance of decisions.
• Emergency hearings – to handle pressing issues, courts may set up emergency hearings.

Ex parte injunctive relief is generally possible, in cases of exceptional urgency or where telling the other party would negate the object of the injunction. The threshold for obtaining such a relief is typically high. The court will carefully evaluate the merits of the case and the urgency of the situation before granting it. Additionally, ex parte injunctions are often temporary and subject to further hearings where the respondent can present their case and challenge the injunction.

Injunctive relief on an ex parte basis could be availed for the following reasons: dangers of irreparable harm; urgent situations; or risk of flight or concealment. In addition, the court may consider other exceptional circumstances on a case-by-case basis. These situations could involve preventing process abuse, maintaining vital evidence, or safeguarding national security.

In Kuwait, the court has the authority to order the applicant to reimburse the respondent for any losses or damages incurred because of the injunction, and the respondent later successfully discharges the injunction. The same principle applies for injunctions obtained through the ordinary procedures or ex parte.

It is customary in Kuwait to assume responsibility for providing security for potential damages. The court has discretion to determine the nature of the security for potential damages.

In Kuwait, an injunction is normally effective inside the borders of the jurisdiction. In other words, the court’s ability to impose an injunction is typically restricted to matters like Kuwaiti property and activities. As a result, an injunction issued by a Kuwaiti court is probably only going to be effective within that jurisdiction; it might not necessarily extend to the respondent’s global assets.

Further legal measures may be required to achieve injunctive relief against the respondent’s international assets. These procedures often involve the enforcement of the Kuwaiti court’s decision or injunction in other jurisdictions where the assets are located. Ultimately, a foreign qualified attorney will become involved in enforcing injunctions or judgments internationally. 

In Kuwait, injunctive relief can be obtained against third parties under certain conditions. The specific procedures for obtaining injunctive relief against third parties will depend on the legal framework and the nature of the case. A request for injunctive relief against third parties is granted when the third party may interfere with contractual relations, conduct torts, aids and abets, divulges trade secrets.

Contempt of court proceedings in Kuwait are governed by the Kuwaiti Civil Procedure Law and the Kuwaiti Penal Code. These laws provide the legal basis for addressing non-compliance with court orders. If a respondent fails to comply with the terms of an injunction, it may result in contempt of court proceedings.

The specific consequences, penalties, and procedures for contempt of court may vary based on the court’s discretion and the circumstances of the case, and can include fines, imprisonment, or other sanctions as determined by the court.

Trials in Kuwait are held using a combination of oral argument, witness and expert examination, and written procedures.

• Written pleadings – parties begin with written pleadings, including the initial complaint, defence and counterclaims.
• Oral presentation – court hearings allow parties to present their case orally, present evidence and question witnesses and experts.
• Witness examination – parties can call witnesses to testify and cross-examine them.
• Expert examination – expert witnesses may provide insights.
• Evidence presentation – parties submit documentary evidence, records and exhibits.
• Oral hearings – the court holds oral sessions for arguments and cross-examination.
• Judgment – a final judgment is issued after trial proceedings.

Shorter hearings for interim motions or petitions are an important component of the judicial procedure in Kuwait. These shorter hearings give a framework for addressing specific legal concerns quickly, allowing parties to present their arguments and evidence orally, leading to a faster resolution of some issues. Typically, one of the parties may file an interim move or application with the court. 

Furthermore, case management hearings may be held before more complex trials or hearings in order to control the timetable leading up to a hearing or trial. These case management hearings are usually held to ensure that the legal processes move along smoothly and that all parties follow the specified timetables and procedural standards.

In Kuwait, neither civil nor criminal cases involve a trial by jury. Like in many civil law regimes, courts determine civil matters by applying recognised legal principles and the legal code. In civil proceedings, the judge hears arguments from the parties and considers the evidence, testimony and facts before rendering a decision based on the law.

The admission of evidence in Kuwait is primarily governed by the Kuwaiti Code of Civil and Commercial Procedure, Law No 38 of 1980. This code outlines the procedural rules and requirements for civil and commercial cases, including those related to the admission of evidence. Additionally, the Kuwaiti Penal Code, Law No 16 of 1960, governs criminal proceedings and the admission of evidence in criminal cases.

These codes, along with other relevant Kuwaiti laws and regulations, provide the legal framework for the admission of evidence, including rules related to relevance, authenticity, admissibility objections, hearsay exceptions, authentication and privilege, and other important aspects of the trial process. 

Expert testimony is often permitted at trial in Kuwait. Parties in legal processes have the right to call expert witnesses to support their claims and provide specialised expertise or insights into the problems at hand. Expert witnesses can be relied upon to provide their knowledge in a variety of topics, including science, technology, medicine, and other specialist areas.

If the court believes it is necessary to clarify or comprehend specific parts of the case, it may also request expert evidence or guidance. This is especially useful when the judge or court needs expert advice to make an informed decision.

Civil and criminal proceedings in Kuwait are generally accessible to the public. Unless there are grounds for a private session, such as protecting sensitive information or privacy issues, members of the public, including journalists and interested others, can normally attend these events. 

Family court and juvenile court proceedings sometimes contain delicate issues, such as family disputes and youngsters. To protect the privacy and best interests of people concerned, particularly minors, these cases are frequently closed to the public.

The choice to open or close a hearing to the public is ultimately up to the sitting judge.

Transcripts of court sessions are not easily accessible to the public and may be restricted. 

To ensure fair and legitimate proceedings, judges in Kuwait actively supervise hearings and trials. Their responsibilities include:

• case management, scheduling, and maintaining courtroom decorum;
• evaluating evidence for admissibility, relevance and authenticity;
• questioning witnesses as needed;
• making legal decisions on facts and procedures;
• issuing verdicts based on law and facts;
• encouraging dispute resolution; and
• deciding on case disposition.

Judgments may be immediate in simple or uncontested cases but reserved for later dates in complex matters with deep legal issues or extensive evidence.

The timetables for processes from the filing of a claim to trial, as well as the normal duration of trials for commercial disputes in Kuwait, might vary based on the complexity of the case, the court backlog, and a variety of other circumstances.

• Claim filing – starting a commercial dispute by filing a claim might take many weeks because it requires preparing the relevant paperwork, such as the claim itself, supporting evidence, and filing costs.
• Preliminary processes – following the filing of the claim, preliminary processes may involve notifying the defendant and arranging the first hearing. This can take anywhere from a few weeks to several months.
• Hearing scheduling – hearings are scheduled by the court, based on court availability. The initial hearing might take several months.
• Trial preparation – the trial preparation and presenting of evidence can take several months.
• Trial start date – commercial trials may begin several months to a year or more after the claim is filed.
• Trial length – the length of commercial trials varies greatly but can normally vary from a few days to a few weeks. 
• Post-trial procedures – the judge may then take more time to deliberate and deliver a decision. 
• Appeals – if any party decides to appeal the ruling, the whole period can be extended by several months.

Depending on the nature of claim, the three stages of court litigation (up until the Cassation Court) take between two and four years. If the sort of claim necessitates prior special remedies, the process will take an extra three to 12 months. In terms of arbitration, depending on the Arbitration Centre/Court, the process typically takes three to six months for a ruling to be issued.

In Kuwait, court permission is usually not required to settle a case, and parties can normally settle their differences through voluntary settlement or agreement without the need for court intervention. Most regular commercial disputes do not require court approval for a settlement, and parties can establish voluntary agreements and resolve their problems on their own. However, there may be instances in which a settlement requires court approval. Court supervision may be required, for example, to protect the interests of vulnerable parties, a minor party, or to preserve the integrity of complex settlements involving multiple parties.

In Kuwait, the details of a litigation settlement may stay private. By incorporating confidentiality clauses in their settlement agreements, parties can frequently keep the specifics of the settlement a secret. These limits may prohibit the parties from disclosing any private information concerning the case, such as the terms of the settlement and the amount of compensation.

Settlement agreements containing confidentiality limits are legally binding and breaching them may result in legal consequences such as a breach of contract claim. The enforceability of stated clauses may be subject to Kuwaiti laws, and the courts have discretion to determine their equity and lawfulness.

In Kuwait, settlement agreements are treated as contracts and enforced through civil contract law principles. The enforcement process typically involves:

• parties executing a written settlement agreement with clear terms;
• optional registration of the agreement with relevant authorities or a notary public;
• if a party breaches the agreement, the other party can file a breach of contract lawsuit in civil court;
• legal proceedings proceeds to assess and address the breaches; and
• the court determines remedies like specific performance or damages, and issues an enforcement order upon a favourable judgment.

If the breaching party continues non-compliance, the judgment creditor can request compulsory execution, which may include asset seizure or other measures to satisfy the judgment.

Settlement agreements in Kuwait can be set aside or challenged in certain circumstances. To overturn a settlement agreement, the aggrieved party must typically file a legal action or motion with the appropriate court. The court will weigh the evidence and arguments presented by both parties before making a decision based on the applicable legal principles and facts of the case.

Settlement agreements may be set aside where there occurs fraud or misrepresentation, duress or undue influence, error, a violation of public policy, or a failure to follow formalities.

Depending on the nature of the case and the specific relief sought, successful litigants in Kuwait may be entitled to a variety of awards and remedies at the full trial stage.

The common awards and remedies available to successful litigants include performance, injunctions, restitution, declaratory judgments, costs and legal fees, and execution and seizure. There may also be specific remedies available such as eviction, contract annulment, orders for property delivery, or orders for accounting, which may be available depending on the nature of the case.

Damages are primarily addressed in Articles 206 through 230 of the Kuwaiti Civil Code. These articles lay out the general principles of damages, such as the different types of damages, how to calculate damages, and when damages can be awarded.

While there are no specific provisions in Kuwaiti law for punitive damages, the Civil Code does provide for various types of compensatory damages and establishes certain rules for calculating damages. Damages are calculated based on the actual losses incurred by the injured party. To determine the amount, the court evaluates the evidence and considers the facts of the case. There is no statutory limit on the amount in a civil case, and the court may reduce the damages proportionally based on contributory negligence.

In Kuwait, a successful party in a civil lawsuit may be entitled to both pre-judgment and post-judgment interest, but each has its own set of parameters and considerations.

Pre-judgment Interest

• Parameters – Articles 241 and 245 of the Kuwaiti Civil Code (Law No 67 of 1980) contain provisions relating to pre-judgment interest. It begins to accrue on the date of default, which is the date on which the debtor is legally required to make the payment. This date can be determined by a contract or a court order.
• Statutory limits – the Kuwaiti Civil Code does not specify a minimum interest rate for pre-judgment interest, but it does provide a maximum interest rate of 7.5% per year in Article 245 of the Code. The specific rate applied, however, may vary depending on the court’s discretion and the facts of the case.

Post-judgment Interest

• Parameters – Kuwaiti law allows for the accrual of post-judgment interest, but no specific interest rate is specified. The court has discretion in determining the rate, which is typically based on current interest rates in Kuwait and other relevant factors.
• Statutory Limits – the Kuwaiti Civil Code contains no statutory limit on the interest rate for post-judgment interest. The court determines the rate.

Domestic judgments are typically enforced in Kuwait through legal mechanisms aimed at compelling the losing party to satisfy the judgment. These mechanisms may entail judicial authorities assisting in ensuring that the judgment is carried out. Common mechanisms for enforcing domestic judgments include execution proceedings, asset seizure, wage garnishment, and court orders for compliance. Non-compliance may lead to imprisonment or compulsory execution.

Enforcing a foreign judgment in Kuwait involves a specific legal process governed by the Kuwaiti legal system and international agreements, if applicable. Kuwait is a signatory to the Riyadh Arab Agreement for Judicial Cooperation, which can facilitate the enforcement of judgments from other member countries.

The Kuwaiti court’s recognition of the foreign judgment provides the legal basis for enforcing the judgment in Kuwait. To enforce a foreign judgment in Kuwait, the process begins with seeking recognition of the judgment by filing a lawsuit in a Kuwaiti court.

Along with the lawsuit, the judgment creditor must provide the Kuwaiti court with the following documentation:

• the original or a certified copy of the foreign judgment;
• an official translation of the judgment into Arabic;
• evidence of the finality and authenticity of the foreign judgment; and
• evidence that the judgment debtor (the party against whom the foreign judgment was issued) was properly served with notice of the foreign proceedings and had an opportunity to defend themselves.

The court reviews the foreign judgment to ensure it meets legal criteria and, if recognised, specifies the enforcement measures to be taken. Once the foreign judgment is recognised in Kuwait, the judgment creditor can proceed with enforcement actions similar to those available for domestic judgments. These may include asset seizure, compulsory execution, or other means to satisfy the judgment.

In Kuwait’s legal system, litigant parties have the option to appeal decisions made in lower courts. The appeal process allows for a review of judgments or decisions to ensure their correctness and fairness. The appeal process involves three levels:

• first instance court – the initial court where cases are heard, and judgments are made;
• court of appeals – an intermediate appellate court for appealing first instance court decisions; and
• Court of Cassation – the highest court, primarily concerned with matters of law, ensuring correct legal application. It does not re-evaluate facts but ensures uniform legal principles.

In Kuwait, judgment appeals are governed by the legal system and specific regulations that outline the conditions under which an appeal to a higher court may be granted. Depending on the type of case (civil, criminal, administrative, etc), the rules and procedures for appeals differ.

Parties dissatisfied with lower court decisions must file an application within specified timeframes. Grounds for appeal include legal, procedural, or factual errors in the judgment. Appeals are reviewed by the Court of Appeals and, if necessary, the Court of Cassation, with a focus on legal issues.

In Kuwait, the process of filing an appeal entails certain deadlines that could change depending on the kind of case and court level. What follows is a broad summary of the duration.

• Submitting an application for appeal – the appellant has 15 to 30 days from the date of the lower court’s verdict to file an appeal application with the appropriate appellate court in order to begin an appeal.
• Cause of event – the appellant has a short window of time after the verdict is rendered to determine whether to file an appeal, based on an acceptable ground, such as procedural irregularities, or legal errors.
• Review by appellate court – the appellate court reviews the appeal application and the lower court’s judgment.
• Appellate court decision – the timeframe for a decision can range from a few months (for simple cases) to many years (for complex claims).
• Seeking leave to appeal to the Cassation Court – the appellant must apply for a leave to appeal, in order for the case to proceed to the Court of Cassation. It is not uncommon for leave to be denied or to be withheld for over a year or two, especially for legacy cases that predate the case management system.

In Kuwait, when reviewing an appeal, the appeal court primarily assesses whether the lower court correctly applied the law and legal procedures. This involves checking for legal errors, procedural irregularities, factual errors, adherence to legal procedure, and considering new legal arguments, while generally not allowing new factual evidence introduced during the appeal.

In certain circumstances, the court in Kuwait may impose conditions on granting an appeal. Compliance with these conditions is usually required for the appeal to be heard. The conditions include the following.

• Deposit requirement – requiring a financial deposit for court costs and potential compensation.
• Timely filing – setting a deadline for filing the appeal after the lower court’s decision.
• Grounds for appeal – requiring valid grounds like legal errors, procedural irregularities, or factual errors.
• Fees – mandating payment of appeal fees and expenses.
• Compliance with court orders – requiring compliance with lower court orders.

After hearing an appeal, the Kuwaiti appellate court has a number of powers and options at its disposal. The appellate court’s powers are used to ensure that justice is served, legal errors are corrected, and the law is correctly applied. The appellate court’s specific actions are determined by the facts of each case and the issues raised in the appeal. The appellate court’s decision is often final, and it can:

• uphold a lower court’s decision – confirm the correctness of the lower court’s decision;
• modify the judgment – make changes to the lower court’s judgment to rectify errors;
• issue a new judgment – provide a completely new judgment if modifications are insufficient;
• reverse the judgment – reverse the lower court’s judgment when significant legal errors occurred;
• order a retrial – order a retrial at the lower court in exceptional cases with significant flaws;
• legal issue clarification – clarify legal principles with broader implications; or
• establish legal precedents – set legal precedents for future cases with similar legal issues.

In Kuwait, the duty for paying litigation costs, such as court fees, expenses and attorney’s fees, varies according to the outcome of the case and the court’s verdict. The prevailing party may be able to recover some or all of these costs from the losing party. The particular procedures and mechanisms for cost recovery, however, are subject to law constraints and the discretion of the court.

The amount of costs to be paid by the losing party to the prevailing party is determined by the court. This may involve an assessment of reasonable attorney’s fees and other litigation-related expenses. In such a case, the losing party may be able to contest the amount of expenses to be paid.

The Kuwaiti Civil Procedure Law governs litigation procedures, including cost allocation. When awarding costs, the court considers various factors like the case’s outcome, party conduct, case complexity, cost reasonableness, proportionality, settlement offers, delays, and the public interest’s impact. Depending on the case type (eg, commercial, labour, family, or administrative), specific laws and regulations may also apply, containing unique cost provisions.

In Kuwait, interest on costs is infrequently awarded in court proceedings. The statutory interest rate can vary based on the nature of the financial transaction or debt. It generally starts accruing from the date of the court’s cost award and can be simple or compound interest. If the statutory interest rate changes during the accrual period, the new rate may be applied. The court ruling may include a payment deadline, and there’s a difference between prejudgment and post-judgment interest, with the former covering costs incurred before the judgment and the latter applied to the judgment amount after it’s rendered.

ADR approaches, including mediation, are acknowledged and supported in Kuwait as efficient and amicable dispute resolution mechanisms.  Kuwait has implemented court-connected mediation services, which allow parties to try mediation before pursuing formal litigation. The following are the most popular ADR methods in Kuwait.

• Mediation – one of the most prominent ADR approaches in Kuwait is mediation. Mediation is frequently utilised in family, commercial, and civil cases.
• Arbitration – arbitration in commercial conflicts is common. The Kuwaiti Arbitration Law governs arbitration proceedings, which can be handled by an arbitral tribunal. 
• Reconciliation committees – to handle some sorts of disagreements, particularly family issues, Kuwait has formed reconciliation committees.
• Expert determination – in some situations, parties may choose expert determination, in which an independent expert evaluates and decides on specific technical or specialised areas of a dispute. Experts are commonly used in commercial and labour law matters.
• Negotiating – parties frequently participate in negotiations to settle their differences without resorting to formal ADR or litigation.
• Commercial mediation centres – there are established commercial mediation centres that facilitate mediation in commercial and business-related disputes.

In Kuwait, ADR methods are becoming more integrated into the legal system, but sanctions for unreasonably refusing ADR, like mediation, are uncommon. ADR participation is generally voluntary, and parties can choose between ADR and formal litigation. Key ADR methods in Kuwait include the following.

• Court-connected mediation – courts offer mediation for cases such as family disputes, encouraging but not mandating participation.
• Reconciliation committees – these encourage voluntary participation in reconciliation efforts for family disputes.
• Commercial mediation centres – these centers promote mediation as an alternative to litigation in commercial and business disputes.
• Binding arbitration – some commercial contracts make arbitration a mandatory part of dispute resolution based on the parties’ agreement.

The ADR legislative framework includes laws and regulations such as:

• Kuwaiti Arbitration Law (Law No 11 of 1995) – governs arbitration proceedings, especially in commercial and business disputes;
• Kuwaiti Civil Procedure Law – establishes general litigation rules and provides a framework for court-connected mediation and other ADR programmes;
• Kuwaiti Family Law (Law No 51 of 1984) – contains provisions for resolving family disputes, particularly marital disputes, child custody, and divorce; and
• Ministerial decrees and regulations – specific ministerial decrees and regulations may govern the implementation of ADR programmes, issued by the Ministry of Justice or relevant authorities.

ADR institutions, such as mediation and arbitration, are relatively well organised in Kuwait. While Kuwait’s legal landscape evolves, a number of organisations and centres work to promote ADR, including the following.

• Commercial mediation centres – these centres are typically well organised and equipped to provide ADR services to commercial dispute parties.
• The Kuwait Chamber of Commerce and Industry (KCCI) is a powerful organisation in Kuwait. It helps to promote ADR, particularly in commercial disputes. The KCCI may provide mediation and dispute resolution services.
• Ministry of Justice – in Kuwait, the Ministry of Justice works to promote and encourage alternative dispute resolution methods within the legal system.
• Reconciliation Committees – such committees are used in order to facilitate reconciliation between parties in family and personal matters.

Kuwait is a signatory to international conventions related to the recognition and enforcement of arbitral awards, such as the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The New York Convention became part of the Kuwaiti legal system by virtue of Decree-Law No 10 of 1978

Kuwait’s arbitration is governed by specific provisions under the Judicial Arbitration in Civil and Commercial Matter Law, Law No 11 of 1995 as amended by Law No 12 of 2013 (“Judicial Arbitration Law”), and the Kuwaiti Civil and Commercial Procedures Law (“KCCPL” or “Procedures 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 requirements 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 Commercial 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.

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 matter from being arbitrated. In essence, Article 173 sets specific conditions for valid arbitration agreements, such as the requirement for a written agreement and the need to define the scope of the matters subject to arbitration clearly. The law also excludes certain disputes from arbitration, including criminal and labour matters. However, disputes arising from commercial agency and distributorship contracts are generally accepted for arbitration in Kuwait.

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 contrary 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.

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 Commercial Circuit of the Court of First Instance in Kuwait.
• Application form – the applicant must submit a formal application, and the arbitration award and agreement.
• Formal requirements verification – the court will ensure that the arbitration award meets all formal requirements. 
• Notification of the opposing party – the court will notify the other party (the respondent).
• Enforcement challenges – if the respondent wishes to challenge the enforcement, they must submit a written objection outlining their reasons for doing so. 
• Examination and decision – the court will then consider the respondent’s objections and make a decision on enforcement. 
• Enforcement order – when an enforcement order is issued, the successful party can proceed to enforce the award by seizing assets or bank accounts to satisfy the award.

Enforcing Foreign Arbitration Awards

The fact that Kuwait is a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards makes it easier to recognise and enforce foreign arbitration awards.

• Request for recognition and enforcement – in order to enforce a foreign arbitration award (one rendered outside of Kuwait), the party seeking enforcement must file a request for recognition and enforcement with the Kuwaiti court, usually the Court of First Instance. This request must be accompanied by the following documents:
1. the foreign arbitration award (translated into Arabic);
2. the parties’ agreement on arbitration;
3. documents confirming the party requesting recognition’s legal capacity; and
4. a certificate attesting to the genuineness of the award.
• Notification of the respondent – as with domestic awards, the court will notify the party (the respondent) against whom the award is being enforced. Within a certain timeframe, the respondent may challenge the enforcement.
• Objections examined – if the respondent raises objections to the enforcement, the court will consider them and issue a decision.
• Decision on recognition and enforcement – once satisfied, the court will issue a decision recognising and enforcing the foreign arbitration award. This decision confirms that the award can be enforced in Kuwait.
• Enforcement actions – the successful party can then take enforcement action to collect the awarded amount. This could include asset seizures, garnishing bank accounts, or other legal measures in Kuwait.

Kuwait has been slower than some of its Gulf neighbours in embracing arbitration as a common method for dispute resolution. Certain government entities in Kuwait still require local court litigation exclusively in their contracts, limiting the use of arbitration. This has led to calls for legislative reform to improve the arbitration landscape. Unlike some Gulf nations that have adopted arbitration laws based on the UNCITRAL Model Law, Kuwait currently relies on two distinct laws – the Judicial Arbitration in Civil and Commercial Matter Law, Law No 11 of 1995 as amended by Law No 12 of 2013 and the Procedures Law – neither of which align effectively with modern arbitration practices.

However, Kuwait has some positive aspects, as it is a signatory to the New York Convention, allowing for the enforcement of foreign arbitral awards within Kuwait and vice versa. Local courts have also demonstrated a commitment to recognising and upholding arbitration agreements made by parties.