Kuwait Court of Cassation principle number 2

Summary: - The provisions of Decree-Law 30 of 2009 establishing the Bahrain Chamber for Settlement of Economic, Financial and Investment Disputes. The Bahraini legislature intended thereby to establish an independent judicial body to settle disputes falling within its statutory jurisdiction. Its judgment is equivalent to a final judicial judgment issued by the courts of Bahrain. A challenge to its validity before the Bahraini Court of Cassation is not an appeal by cassation but a special kind of challenge entrusted to that Court for determination, in departure from its original jurisdiction, for considerations assessed by the Bahraini legislature to achieve a public economic interest relating to society's higher order, under the supervision of the Supreme Judicial Council, and it alone has jurisdiction over those disputes. - A judgment issued by the Bahrain Chamber for Settlement of Economic, Financial and Investment Disputes. Its satisfaction of the conditions required by Article 199 of the Code of Procedure and conformity with the provisions of the Convention on Enforcement of Judgments issued in a Gulf Cooperation Council State. This is not affected by criticism concerning matters relating to the proceedings in which the foreign judgment was issued, which the courts of the State requested to enforce it may not examine. Reason: an application to enforce a foreign judgment is not a level of litigation and is not a challenge to that judgment. Rule: Accordingly, it is apparent from the photocopy attached to the record of Decree-Law 30 of 2009 establishing the Bahrain Chamber for Settlement of Economic, Financial and Investment Disputes, whose preamble referred to its provisions being issued in conformity with the Judicial Authority Law, the laws on procedure, evidence, judicial fees, and the legal profession, and the Central Bank of Bahrain and Financial Institutions Law, that Article (2) provides: (An independent chamber for settlement of economic, financial and investment disputes shall be established, called the Bahrain Chamber for Settlement of Immunities, enjoying legal personality, and the Minister shall undertake administrative supervision oversight thereof). Article (9) provides that the Chamber shall have jurisdiction to determine the following disputes, jurisdiction over which originally lies with the courts of Bahrain or any body having judicial jurisdiction, where the claim exceeds five hundred thousand (Bahraini) dinars: 1- Disputes between financial institutions licensed under the Central Bank of Bahrain Law, or between them and other institutions, companies, and individuals. 2- International commercial disputes; and the dispute is international if the place of business of one party to the dispute, the place where a substantial part of the obligations arising from the commercial relationship is performed, or the place most closely connected with the subject matter of the dispute is outside the Kingdom. The dispute is commercial if distribution and commercial representation or commercial agency, management of rights for others, hire-purchase, construction of factories, consultancy services, engineering works, licensing, investment, financing, banking, insurance, exploitation agreements or concessions, joint ventures and other forms of industrial or commercial cooperation, and carriage of goods or passengers by air, sea, or land .. . Challenges by cassation were restricted to exceptional cases specified in Article (13) of the same Law. Article (15) provides that a judgment issued by the dispute settlement panel under this Chapter is equivalent to a final judgment issued by the courts of Bahrain; the regulations shall set out the rules governing affixation of the executory formula thereto, and a judgment of the dispute settlement panel issued under this Chapter shall be enforceable unless the Court of Cassation orders a stay of execution .. . Article (18) provides that the Supreme Judicial Council shall supervise the proper conduct of work at the Chamber .. . Article (26), in Part Three under the item regulating proceedings before the Chamber, provides: (The rules prescribed in the Code of Civil and Commercial Procedure and the Law of Evidence in Civil and Commercial Matters shall apply insofar as they do not conflict with the nature of the Chamber's jurisdiction and the procedures prescribed before it, (indicates that the Bahraini legislature's intention in these provisions collectively, as disclosed and indicated by their wording, clear in its intended meaning, was to establish (an independent judicial body) to settle disputes falling within its statutory jurisdiction pursuant to (Chapter One of Part Two) of Decree-Law No. 30 of 2009 and the Procedural Regulations issued by Minister of Justice Decision No. 65 of 2009, and that its judgment is equivalent to a final judgment issued by the courts of Bahrain under Article (15) of the aforementioned Decree. A challenge to its validity before the Court of Cassation under Article (13) is not an appeal by cassation but a special kind of challenge entrusted to the Court of Cassation for determination, in departure from its original jurisdiction, for considerations assessed by the legislature, on eight grounds exhaustively specified in the (aforementioned) article of that Law. As such, it is a court of a special nature established to align with and keep pace with economic developments, whose existence the legislature considered conducive to the country's interest, to achieve a public economic interest relating to society's higher order, under the supervision of the Supreme Judicial Council. The legislature deemed the Chamber's decisions final, enforceable judicial judgments and specifically entrusted it with a particular category of cases in which the claim exceeds (500) thousand Bahraini dinars, withdrawing the original jurisdiction conferred on the courts of Bahrain to hear them and claims exceeding that amount, or on any body having judicial jurisdiction, by expressly so providing in Article (Nine) of the aforementioned Law, so that it alone has jurisdiction over them owing to the special nature of those disputes. Accordingly, a judgment issued by that Chamber satisfies all conditions required by the legislature under Article (199) of the Code of Procedure and conforms to the provisions of the Convention on Enforcement of Judgments, as the challenged judgment concluded. This is not affected by the appellant's complaint that the challenged judgment disregarded her disavowal—before the Dispute Settlement Chamber in Bahrain—of the photocopy of the contract underlying the respondent's action in which the foreign judgment was rendered, which included the parties' agreement to the Chamber's jurisdiction, the Chamber's failure to administer an oath to her in support of relying on the respondent's regularly kept books, and her insistence that the Bahraini judiciary lacked jurisdiction. Her criticism in this regard is inadmissible, since an application to enforce a foreign judgment is no more than a level of litigation and is not a challenge to that judgment; the courts of the State requested to enforce it may not examine the merits as factual matters relating to the proceedings in which the foreign judgment was rendered. Moreover, the foreign judgment did not rely on that photocopy in its ruling, but inferred the appellant company's obligation for the disputed loan amount from the respondent's regularly kept books and consequently held it obliged to pay the loan amount to the respondent in the State of Bahrain. The obligation is therefore to be performed in the State of Bahrain, giving its courts jurisdiction over the dispute pursuant to paragraph (c) of Article Four of the aforementioned Convention. The challenged judgment cannot therefore be faulted for disregarding this defence as lacking a sound legal basis. Nor is this affected by the appellant's complaint that the challenged judgment disregarded her contention that the foreign judgment violated Kuwaiti public policy because it was issued at one level of litigation rather than two. It is apparent from the foregoing that the foreign judgment has res judicata effect in the State of Bahrain and thus satisfies the conditions for enforcement in the State of Kuwait under the rules of the aforementioned Convention on Enforcement of Judgments, Letters Rogatory and Judicial Notifications in the States of the Cooperation Council for the Arab States of the Gulf, particularly since this judgment became irrevocable after the challenge to it by cassation was dismissed by the judgment of the Court of Cassation in the State of Bahrain in Appeal No. 369 of 2013 dated 5/5/2014—a copy of which is submitted in the record. Accordingly, the challenge in its entirety is unfounded.