Kuwait Court of Cassation principle number 223

Summary: - Companies for the development and implementation of public warehouses and border crossings. The provision for the absolute nullity of every contract concluded to implement the projects stipulated in Article 1 of the law establishing them whenever concluded in violation of its provisions. Its application to an auction whose subject is implementation of a project for developing, operating and maintaining services supporting customs work. Articles 1, 2 and 3 of Law 5 of 2008 establishing the aforementioned companies. The intended scope of nullity therein: every contract concluded after the aforementioned law came into force, excluding contracts concluded before it. An example of nullity not extending to an auction contract concluded pursuant to Customs Law 10 of 2003. Rule: The provision in Article 2 of Law No. 5 of 2008 establishing companies for the development and implementation of public warehouses and border crossings that “Every contract concluded in any manner to implement the projects referred to in Article 1 of this Law contrary to the provisions of that same Article shall be deemed absolutely null and void and as though it had never existed”, and in Article 3 of the same Law that “The provisions of this Law shall apply to any auction whose subject is implementation of a project for developing, operating and maintaining services supporting customs work”, expressly indicate—as stated in the Law’s Explanatory Memorandum—that the intended scope of the nullity prescribed by the legislature in this regard is every contract concluded after the aforementioned Law came into force, not contracts concluded before it. That being so, and as it is apparent from the papers that the first respondent collected the fees at issue from the appellant “in his capacity” on the basis of the auction contract dated 9/2/2005 concluded between it and the State, represented by the third respondent “in his capacity”, pursuant to the provisions of Unified Customs Law No. 10 of 2003, and the nullity subsequently prescribed by the legislature in the aforementioned Law No. 5 of 2008 does not extend to it, the challenged judgment, in giving effect to that contract and consequently holding that the first respondent was entitled to collect the fees at issue and rejecting the appellant’s request, “in his capacity”, for their repayment, correctly applied the law. The criticism of it on this ground is therefore without foundation.