Kuwait Court of Cassation principle number 128

Summary: - Capital Markets Authority. The legislature established a special framework for it under Law 7/2010 concerning its establishment. It also assigned it powers of considerable consequence to enable it to perform its role in regulation, awareness and supervision of securities activities, ensuring fairness, competitiveness and transparency, preventing conflicts of interest and protecting participants in its activities, thereby ensuring that securities markets are not disrupted and remain stable in a manner serving economic development objectives. - Criminal actions and actions concerning commercial, civil and administrative disputes arising from the application of this Law and the rules and regulations governing the securities market, and all substantive enforcement disputes. The legislature established a precise, special framework for them ensuring justice and the speedy conclusion of all these actions and disputes. - Exclusive jurisdiction of the criminal and non-criminal circuits of the Capital Market Court at the Court of First Instance over disputes arising from the application of the Capital Market Law. - A judgment rendered by the competent circuits of the Court of Appeal, "criminal or non-criminal," in disputes arising from the Capital Market Law. Considered the final stage of litigation. Its implication. Their judgments may not be challenged by any means of challenge. Reason therefor. Achieving prompt stability for securities market participants and fostering the requisite atmosphere of confidence, transparency and competitiveness, thereby achieving the objectives of this economic activity. - Cassation appeals against judgments rendered by these appellate circuits. Impermissible. Example concerning a judgment rendered by the Capital Markets Administrative Circuit of the Court of Appeal. Rule: Article (108) of Law No. 7 of 2010 concerning the establishment of the Capital Markets Authority and regulation of securities activities 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 comprise the following: 1- Criminal circuits having exclusive jurisdiction to determine criminal actions relating to the offences provided for in this Law. 2- Non-criminal circuits having exclusive jurisdiction to determine non-criminal actions relating to commercial, civil and administrative disputes arising from the application of this Law and the rules and regulations governing the securities market, and substantive enforcement disputes relating to judgments rendered by them, regardless of the value of these disputes. These circuits shall be composed of three judges, at least one of whom shall hold the rank of counsellor. 3-........" The first paragraph of Article (112) of the same Law provides: "A criminal circuit and one or more specialized non-criminal circuits shall be constituted at the Court of Appeal to hear appeals against judgments rendered by the Capital Market Court, and their judgments shall be final and may not be challenged by any means of challenge." Article (164) thereof provides: "This Law shall be considered a special law, and its provisions shall be considered special provisions. Every provision of a general or special law conflicting with its provisions is repealed." This indicates that the legislature established a special framework under the aforementioned Law No. 7/2010, pursuant to which it established the Capital Markets Authority and directed to it powers of considerable consequence to enable it to perform its role in regulation, awareness and supervision of securities activities, ensuring fairness, competitiveness and transparency, preventing conflicts of interest and protecting participants in its activities, thereby ensuring that securities markets are not disrupted and encouraging its stability in a manner serving the objectives of the economic development witnessed by the State of Kuwait. In view of what is required for the speedy determination of criminal actions and actions concerning commercial, civil and administrative disputes arising from the application of this Law and the rules and regulations governing the securities market, and all substantive enforcement disputes, the legislature established in Articles 108, 109, 110, 111, 112, 113, 114, 115, 116 a precise, special framework encompassing the achievement of justice—without prejudice to the safeguards set out in those articles concerning the speedy conclusion of all these actions and disputes. It vested the criminal and non-criminal circuits of the Capital Market Court at the Court of First Instance with exclusive jurisdiction to determine them, and made the judgment rendered by the competent circuits of the Court of Appeal (criminal or non-criminal) the final stage, deeming their judgments final and not subject to challenge by any means of challenge. This accords with the nature of these actions and conclusively and expressly resolves, through the judgment rendered by the competent circuit of the Court of Appeal, the dispute or action in which it is rendered, achieving prompt stability for securities market participants, positively affecting safe trading and those participating in it, and fostering an atmosphere of the requisite confidence, transparency and competitiveness that achieves the objectives sought in this important economic activity. That being so, and as it is established from the papers that the appellant, in his capacity, brought his action before the administrative circuit competent for the capital market at the Court of First Instance, which was established pursuant to Law No. 7 of 2010 and Minister of Justice Decision No. 111 of 2010, requesting annulment of Decree No. 407 of 2011 insofar as it terminated the membership of the persons referred to on the Board of Commissioners of the Capital Markets Authority, with the consequences ensuing therefrom, this is, as such—and without dispute—one of the disputes arising from the application of the aforementioned Law No. 7 of 2010, jurisdiction to determine which therefore lies with the Capital Markets Court at the Court of First Instance. The Capital Markets Administrative Circuit rendered judgment in the action at the hearing of 25/12/2011, and the appellant, in his capacity, challenged it by Administrative Appeal No. 12 of 2012 before the Administrative Circuit for Capital Markets Appeals at the Court of Appeal, itself established pursuant to Minister of Justice Decision No. 111 of 2010 in implementation of Law No. 7 of 2010. That circuit determined the appeal at the hearing of 13/2/2012 by reversing the appealed judgment and ruling that it lacked jurisdiction. Accordingly, this judgment, having exhausted the stages of challenge as described above, may no longer be challenged by cassation, that avenue being legally foreclosed pursuant to Article (112) of the aforementioned Law No. 7 of 2010.