Kuwait Court of Cassation principle number 127

Summary: - Capital markets. Establishment of a specialised judicial body to facilitate and simplify resolution of disputes arising in connection with application of this Law, which took care to repeal any provision conflicting with its provisions. Reason therefor. Articles 108 and 116 of Law 7 of 2010 concerning the Establishment of the Capital Market Authority and the Regulation of Securities. - Capital Markets Court. Criterion for its jurisdiction: the dispute must arise from application of Law 7 of 2010 concerning the Establishment of the Capital Markets Authority and the Regulation of Securities and the rules and regulations governing the securities market, and enforcement disputes relating to judgments issued by it; its provisions supersede those of any other law. Example concerning a dispute outside the jurisdiction of the non-criminal circuit of the Capital Markets Court. Rule: Article 108 of Law No. 7 of 2010 concerning the Establishment of the Capital Markets Authority and the Regulation of Securities provides: "A court called the ‘Capital Markets Court’ shall be established at the Court of First Instance. Its seat shall be determined by a decision of the Minister of Justice with the approval of the Supreme Judicial Council. This court shall consist of the following: 1- ... 2- Non-criminal circuits having exclusive jurisdiction to adjudicate non-criminal actions relating to commercial, civil and administrative disputes arising from application of this Law and the rules and regulations governing the securities market, and substantive enforcement disputes relating to judgments issued by them, irrespective of the value of these disputes." Article 116 provides: "The non-criminal circuits of the Court of First Instance shall, of their own motion, refer actions pending before them which have become subject to the jurisdiction of the Capital Market Court under this Law to the latter, in their existing state." This indicates, as stated in the Law’s Explanatory Memorandum, that a judicial body specialised in capital-market activities was established to facilitate and simplify resolution of disputes arising in connection with application of this Law, which took care to repeal any provision conflicting with its provisions, whatever the subject matter of that provision, in recognition that its provisions are those of a special law concerning capital markets which, in its application, supersedes any other special or general law. The criterion for the Capital Market Court’s jurisdiction is that the dispute arise from application of Law No. 7 of 2010 concerning the Establishment of the Capital Markets Authority and the Regulation of Securities, the rules and regulations governing the securities market, and substantive enforcement disputes relating to judgments issued by it. That being so, and whereas the first respondent brought his incidental action seeking an order requiring the two appellants, jointly, to pay .... Real Estate Company (in liquidation) the amount of 8328902.866 dinars, representing the indebtedness owed by them as a result of the third respondent bank’s liquidation of the company-owned investment portfolio to discharge the second appellant’s debt secured by a pledge of that portfolio, and the appellants also brought their incidental action seeking appointment of an expert to identify the person who established the investment portfolios registered in the name of Al-Hadi Real Estate Company (in liquidation), their true owner, the loans obtained in the company’s name, the person who obtained them, the person repaying them, and whether they had been repaid from his own account or the company’s account, and to determine the amount remaining unpaid and settle the account between the parties to establish the difference due to them from the company, as a preliminary to a judgment declaring their entitlement to recourse against the company’s liquidator for those amounts, those actions, as such, are not commercial disputes arising from application of the aforementioned Law No. 7 of 2010 concerning the Establishment of the Capital Markets Authority and the Regulation of Securities and the rules and regulations governing the securities market. They therefore do not fall within the jurisdiction of the aforementioned non-criminal circuit of the Capital Markets Court. Since the first-instance judgment, upheld by the challenged judgment, adhered to this view and ruled on the merits of the dispute, it neither violated the law nor erred in applying it, and the complaint is unfounded.