Recognition and enforcement of foreign arbitral awards in Kuwait

Abstract

International commercial arbitration is undertaken for the purpose and in the confidence that an award emanating therefrom is binding, recognizable and enforceable between the parties. Recognition and enforcement give rise to legal issues because while awards may be obtained by private parties or companies, recognition and enforcement depend on the state through its judicial arm, the courts. There might be conflicts between the successful parties’ aspirations and those of the state or the court that must recognize and enforce an award. The procedure is therefore key. This thesis seeks to analyse the rules relevant to the recognition and enforcement of foreign arbitral awards in Kuwait and also to evaluate the effectiveness of Kuwait’s recognition and enforcement framework, especially against the backdrop of article V (1) and (2) of the New York Convention. Kuwait derives its laws mainly from Islamic law, Islamic jurisprudence, local customs, international conventions and international law. Kuwaiti’s statutory laws largely meet international standards but with some reservations. In particular, the recognition and enforcement of foreign arbitral awards is largely subjected to Islamic law and principles as arbitral awards must usually be registered in Kuwaiti courts and be validated by judges, who are constitutionally bound to adhere to the supremacy of Islamic law and values. Nevertheless, this study establishes that Kuwaiti laws and practices on recognition and enforcement of foreign arbitral awards for the most part have applied the rules and standards stipulated in the New York Convention, albeit restrictively. However, deviations exist between the Arabic text of the New York Convention and the actual text of the Convention. These deviations do not necessarily hamper the effective recognition and enforcement of foreign arbitral awards, but in some respects they render a narrower and more restrictive interpretation and application of the Convention in Kuwait.