Kuwait is officially known as the ‘state of Kuwait’ and is situated on the northern edge of eastern Arabia. Kuwait is an emirate consisting of an autocratic political system, and the official state religion is Maliki Sunni Islam. Because of the complexities in the language, culture, and traditions the debt collection in Kuwait is very difficult. Thus, many debtors will refrain from paying the debt when a crisis arises about the debt collection. Many of the creditors of Kuwait usually adopt the prelitigation methods, which are followed in other Arab countries. Because, to a certain extent, the prelitigation techniques do help the creditors to get back the payment of debts. So, in most cases, the prelitigation methods for debt collection are always successful. Even after the prelitigation techniques and modes of communication, if the creditors and the agents fail to recover the debt, they will seek aid from the courts for the recovery. But in most cases, the creditors won’t prefer the court procedures as they are time-consuming and expensive. Let’s summarize the debt recovery in Kuwait and the prelitigation methods for debt collection.
The debt recovery in Kuwait begins in the banks like any other country. Like we have discussed the debt collection procedures in Saudi Arabia, Oman, and Qatar, the debt recovery in Kuwait also begins in the bank. And suppose the debtors refrain from paying the amount. In that case, the creditors will go for the prelitigation methods. And then the court procedures, even after the prelitigation process, remained ineffective. The debt collection process begins after the creditor sets out a date to deduce the amount from the debtor’s account on an agreed date. The creditor is not allowed to charge any additional cost or fee for the same. The bank has the authority to reschedule the debt if there are any situations for debtors, which is very reasonable and should be done within 30 days. For the process, the creditor could not deduct any sum of the money or block the amount in the debtor’s account without any ruling or judgment of the court.
If the debtors are reluctant to pay the debt through banks, then the creditors can adopt prelitigation methods. Rather than adopting the court procedures and the trials, the prelitigation plans often give the best resolution for the disputes in the debt recovery. Apart from the court trials and court proceedings, the prelitigation techniques are often practical, time-consuming, and economically feasible for both parties, whether the creditor or the debtor. In Kuwait, they also have adopted similar kinds of prelitigation methods like other Arab countries. The standard mode of communication of the debtors will be through registered mails, telephones, SMS, emails, etc. The creditors must keep in mind that the communication must include:
a) The area of the defaulted payment.
b) The name of the debtors and creditors.
c) The working hours of the third party.
Still, they also have to keep in mind that the envelope should not contain any phrase or indication that defines the debt. All the recordings made by creditors to reach the debtor should be recorded accordingly and kept safe for more than ten years. The creditors should not give any false information regarding the consequences of the default payment, which is considered illegal.
In 1959, legislation amplified the system of Muslim Law (Shari’ah), which established courts of law regulated by the judicial system and adopted modern legal codes. All of the administrative courts in Kuwait will comprise a summary court, consisting of one or more divisions, and one judge will chair over each. In Kuwait, the summary court deals with civil and commercial cases as well as leases. Tribunals in Kuwait deal the matters regarding civil and criminal cases. But the disputes in related to religious issues and the conflicts dealing the amount over KD 1000. The appeals jurisdiction in Kuwait is generally classified as two. One chamber involves the cases regarding the personal status and civil cases, while the other chamber deals with commercial and criminal issues. The Kuwait court is mainly classified into General Courts (courts at first instance), Court of Appeals, and Courts of Cassation.
The limitation period for the cases in Kuwait always depends upon the cause of action. But the general limitation period for the disputes in Kuwait for all the civil claims is 15 years. But for the other disputes, depends upon the cause of action alone.
The significant point to note when initiating a claim in the courts of Kuwait is that all the documents must be filed in Arabic. The procedures for initiating a civil or a commercial claim are the same. Usually, the court actions are always undertaken by the plaintiff in the courts of Kuwait. But the legal representation is not compulsory in civil cases. If any of the parties want to represent through the counsel on the civil proceedings, then that legal representative should be a Kuwait qualified lawyer. So, let’s go through the procedures to initiate a claim in the Kuwait court:
a) The claim will be initiated by submitting a claim statement comprising all the supporting documents related to the disputes to the respective court’s court clerk.
b) The Court must retain a copy of the claim statement within himself and have to refer the original to the clerk’s department for effective service on the defendant, often between five to ten days. It depends upon the nature of the claim and the court circuit.
c) Once the statement of claim is served to the defendant properly, now the defendant has to submit the response with a statement of defence against the plaintiff’s statement of claim. The defence must include the procedural and substantive defences, jurisdictional objections, and counterclaims, along with the supporting evidence for the case. The statement of defence must be filed and must be done before the date of the hearing.
d) If the party feels that there are factual issues in the dispute, the parties can request the court to appoint an expert to test the evidence of the disputes. Even though the court itself feels that there is a need for an expert, the court can appoint discretionary powers. The Ministry of Justice of Kuwait has a list of experts in all the fields who can render their assistance in all financial, technical, and factual matters. The court also has the power to appoint an external expert for testing the evidence. Usually, such experts will be professors from the Kuwait university
e) Depending upon the size, nature, and complexities of the claim, the court will appoint one or more panels of experts. These experts meet the party and have to submit submissions and evidence supporting the submissions and submit a report to the respective courts.
f) Eventually, the court will decide concerning the factual submission made by the experts.
The party could go for an appeal in the Courts of Appeal. The dispute will be referred to the Expert departments for finding the facts. Once the judgment of the Court of Appeal is issued, then only some points of law could only be appealed in the Court of Cassation. It will take two to three years to hand over the judgment in lower courts, and if it’s demanded, it will take a further one more year to get the judgment. If it’s appealed further to the Court of Cassation, then it will take an additional two more years for the judgment. Once the General Court’s decision is given, the party could apply for an appeal within 30 days starting from the issued date of judgment.
But in the case of interim appeals in the Court of Appeals, the period to resolve appeals is within six months. If the party wants again to go for an appeal after the Appellate Court’s judgment, then again, the party will have a time of thirty days as period. For the Appeal in the Court of Cassation, the case will be referred to the Council Chamber. The court will hear the case if the chamber accepts it. If they are denied, the case will be rejected in the Court of Cassation for hearing.
In some instances, the court can issue an injunction order or temporary precautionary attachment over the party’s assets or give a travel ban or freezing order which prevents the party from removing the properties or assets from the corresponding jurisdiction. It is called injunctive relief and is interim relief granted by the court in the circumstances and is purely the desecration of the Kuwait courts. For such an order, the party has to file a petition requesting injunctive relief within a week. And the parties have to appear in court within 24 hours of the submission of the petition.
The cost of litigation in the Kuwait courts is generally classified into court fees and legal fees. Court fees will be levied on the parties in respect to the proportion of the claims. In some instances, like employment matters, such prices are fixed. While in other cases, the courts will charge 2.5% of the first KWD 10,000 and 1% on any amount claimed above an amount of KWD 10,000. The party against whom the judgment is made is entitled to pay the legal fees and court fees to the opposite party. Ergo the legal fees are the sole discretion of the court. The prices which the judge grants will include both the court and counsel fees and will range between KWD50 – KWD500.