General information
About Kuwait
Kuwait's constitution was adopted in
1962 and has never been amended. The civil
court system in Kuwait is one of the oldest
in the Arabian Peninsula and unlike other
GCC states, comprises personal status cases
(and thus avoids the civil court-shari'a
court dualism prevalent in its sister
states).
As stated in the constitution, the
Judiciary in Kuwait is an independent body;
therefore allowing the administration of
justice to be free and fair from the
influence of any authority.
The right of litigation is also guaranteed
by the constitution to all citizens as per
the procedures and manners prescribed by
law. The codified law system or civil code
serves as principal law. It was introduced
to govern various activities and
transactions in instances where other laws,
in general, do not provide for a rule to
govern an action or an issue of
dispute.
The Kuwaiti criminal judicial system also
provides fair public trials and an adequate
appeals mechanism, according to the United
States Department of State's Country
Reports on Human Rights Practices for 1991.
Under Kuwaiti law, no detainee can be held
for more than four days without charge;
after being charged by a prosecutor,
detention for up to an additional
twenty-one days is possible. Persons held
under the State Security Law can be
detained. Bail is commonly set in all
cases. The courts depend extensively on the
Experts Dept., which is an ancillary body
of the court. The noted "Experts" are
employees of the Ministry of Justice and
are either engineers or accountants. Their
role is to look in to the issues of
technical and accounting merits of a
dispute, hence report their findings and
explanations to the court. However, their
role has evolved into a close assistant of
the court and act as investigators who
verify many aspects pertaining to evidence,
facts and merits of the dispute.
Nearly half of the Judges, two thirds of
the General Prosecutors and Experts are
Kuwaiti citizens, while the others are
expatriates from neighboring Arabic
countries mainly Egypt. Kuwait follows a
three-fold litigation system, the Court of
First Instance (Kullia), the High Court of
Appeal and the Court of Cassation (Mahkamat
Al-tamyiz).
The lowest level courts, aside from traffic
courts, are the misdemeanor courts also
known as small claims courts. They are not
part of the three tier system as they only
handle claims under KD 5,000 or offences
subject to imprisonment not exceeding three
years. Legal counsel is optional in
misdemeanor cases, and the court is not
obliged to provide an attorney. A judgment
issued pertaining to a dispute which
claimed amount does not exceed KD. 1000/-,
is final and un-appealable. Where the
claimed amount ranges between KD.1001/- and
KD. 5000/-, a judgment issued by the court
is appealable at the partial appeal Court
instead of the High Court of Appeal. If the
claimed value exceeds KD. 5000/-, i.e.,
5001/- and above, a judgment issued in its
regard may be appealable at the High Court
of Appeal and thereafter at the Court of
Cassation.
The Constitution also stipulates the
establishment of a Constitutional
Court. This court decides disputes relating
to the constitutionality of laws, law
decrees and regulations, and election of
MPs, or the validity of their membership.
It also has the authority to interpret a
constitutional article following a request
by the National Assembly or the government.
If the Constitutional Court decides that a
law, a law decree or a regulation is
unconstitutional it shall be considered
null and void. There is a basic premise for
doing business in Kuwait, which is
described in Articles 23 and 24 of the
constitution that foreigners wanting to
conduct business in Kuwait need to keep in
mind. Article 23 provides that non-Kuwaitis
cannot engage in commerce in Kuwait without
having a Kuwaiti partner whose equity
holding is at least 51 percent.
Article 24 provides that a foreign company
cannot establish a branch in Kuwait
(on-shore) and it may not engage in
commercial activities in Kuwait except
through a Kuwaiti agent.