Kuwait Court of Cassation principle number 318

Summary: - The Capital Markets Authority. The legislature established a special regulatory framework for it pursuant to Law 7/2010 concerning its establishment. It also assigned it powers of far-reaching effect to enable it to perform its role in regulation, awareness-raising and supervision of securities activities in a manner ensuring fairness, competitiveness and transparency, preventing conflicts of interest, and protecting persons dealing in its activities, thereby ensuring that securities markets are not disrupted and are stable in a manner serving the objectives of economic development. - Criminal actions and actions relating to commercial, civil and administrative disputes arising from the application of the provisions 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. - 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 provisions of the Capital Market Law, to the exclusion of others. - A judgment delivered 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. The import thereof. Their judgments may not be challenged by any means of challenge. The reason therefor. Achieving prompt stability for persons dealing in securities and fostering the requisite climate of confidence, transparency and competitiveness, thereby achieving the objectives of this economic activity. - An appeal in cassation against judgments delivered by these appellate circuits. Impermissible. An example concerning a judgment delivered by the Administrative Capital Markets Circuit at the Court of Appeal. Rule: The provision in Article (108) of Law No. 7 of 2010 concerning the establishment of the Capital Markets Authority and the regulation of securities activities that: "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- 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 the provisions of this Law and the rules and regulations governing the securities market, and substantive enforcement disputes relating to judgments delivered by them, irrespective of the value of these disputes. These circuits shall be constituted of three judges, one of whom shall hold at least the rank of counsellor. 3-........"; the provision in the first paragraph of Article (112) of the same Law that: "A criminal circuit and one or more specialised non-criminal circuits shall be constituted at the Court of Appeal to hear appeals against judgments delivered by the Capital Market Court, and their judgment shall be final and unchallengeable by any means of challenge"; and the provision in Article (164) thereof that: "This Law shall be considered a special law, and its provisions shall likewise be considered special provisions, and every provision in a general or special law conflicting with its provisions shall be repealed", indicate that the legislature established a special framework pursuant to the aforementioned Law No. 7/2010, under which it established the Capital Markets Authority and assigned it powers of far-reaching effect to enable it to perform its role in regulation, awareness-raising and supervision of securities activities in a manner ensuring fairness, competitiveness and transparency, preventing conflicts of interest, and protecting persons dealing in its activities, thereby ensuring that securities markets are not disrupted and encouraging their stability in a manner serving the objectives of the economic development witnessed by the State of Kuwait. In view of the requirements of speedy determination of criminal actions and actions relating to commercial, civil and administrative disputes arising from the application of the provisions 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 forth in these Articles for the speedy conclusion of all these actions and disputes. It vested jurisdiction in the criminal and non-criminal circuits of the Capital Market Court at the Court of First Instance, which have exclusive authority to determine them, and made the judgment delivered by the competent circuits of the Court of Appeal (criminal or non-criminal) the final stage, deeming their judgments final and unchallengeable by any means of challenge. This accords with the nature of these actions and conclusively and expressly resolves, through the judgment delivered by the competent circuit of the Court of Appeal, the dispute or action in which it is delivered, achieving prompt stability for persons dealing in securities, with a positive effect on safe trading and those dealing in them, and fostering a climate 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, established pursuant to Law No. 7 of 2010 and under Minister of Justice Decision No. 111 of 2010, seeking annulment of Decree No. 407 of 2011 insofar as it terminated the membership of the persons referred to in the Board of Commissioners of the Capital Markets Authority, together with the effects consequent thereon; and as such it is—without dispute—one of the disputes arising from the application of the provisions of the aforementioned Law No. 7 of 2010, jurisdiction to determine it is vested in the Capital Markets Court at the Court of First Instance. As the Administrative Capital Markets Circuit delivered judgment in the action at the hearing of 25/12/2011, the appellant, in his capacity, challenged it by Appeal No. 12 of 2012, Administrative, before the Administrative Circuit for Capital Markets Appeals at the Court of Appeal, which was itself established pursuant to Minister of Justice Decision No. 111 of 2010 in implementation of Law No. 7 of 2010, and which determined it at the hearing of 13/2/2012 by setting aside the appealed judgment and ruling that it lacked jurisdiction; accordingly, this judgment, having exhausted the stages of challenge in the manner described above, becomes incapable of challenge by cassation, that route being legally closed pursuant to Article (112) of the aforementioned Law No. 7 of 2010.