Kuwait Court of Cassation principle number 472

Summary: - The provisions of Decree-Law 30 of 2009 establishing the Bahrain Chamber for the Settlement of Economic, Financial and Investment Disputes. The Bahraini legislature’s intention thereby is to establish an independent judicial body to settle disputes falling within the limits of its statutory jurisdiction. A judgment issued by it is equivalent to a final judicial judgment issued by the courts of Bahrain. A challenge seeking its annulment before the Bahraini Court of Cassation is not an appeal by way of cassation, but a challenge of a special kind entrusted to that Court for determination, departing from its original jurisdiction, for considerations assessed by the Bahraini legislature in furtherance of a public economic interest relating to the paramount order of society, under the supervision of the Supreme Judicial Council. It alone has jurisdiction to consider those disputes. - A judgment issued by the Bahrain Chamber for the Settlement of Economic, Financial and Investment Disputes. Its fulfilment of the conditions required by Article 199 of the Law of Procedure and its conformity with the provisions of the Convention on the Enforcement of Judgments Issued in a Gulf Cooperation Council State. This is not altered by challenges concerning matters relating to the action 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 an appeal against that judgment. Rule: That being so, and whereas it is apparent from the photocopy attached to the papers of Decree-Law 30 of 2009 concerning the establishment of the Bahrain Chamber for the Settlement of Economic, Financial and Investment Disputes, whose preamble referred to its provisions being issued in conformity with the provisions of the Judicial Authority Law, the laws of procedure, evidence, judicial fees and the legal profession, and the Central Bank of Bahrain and Financial Institutions Law, and Article (2) of which provided that (an independent chamber shall be established for the settlement of economic, financial and investment disputes, called the Bahrain Chamber for the Settlement of Immunities, having legal personality, and the Minister shall undertake supervision administrative oversight over it). In Article (9), the Chamber has jurisdiction to determine the following disputes, jurisdiction to hear which originally lies with the courts of Bahrain or any body having judicial jurisdiction, where the value of the claim exceeds five hundred thousand dinars (Bahraini): disputes between financial institutions licensed under the provisions of the Central Bank of Bahrain Law, or between them and other institutions, companies and individuals. International commercial disputes; and the dispute shall be international if the place of business of one of the parties to the dispute, or the place where a substantial part of the obligations arising from the commercial relationship is performed, or the place with which the subject matter of the dispute is most closely connected, is situated outside the Kingdom, and the dispute shall be commercial if distribution and commercial representation or commercial agency, management of rights for others, leasing with purchase, construction of factories, consultancy services, engineering works, issuance of licences, 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 .. It restricted appeal against it by way of cassation to exceptional cases specified in Article (13) of the same Law. Article (15) provides that a judgment issued by the dispute settlement tribunal in accordance with the provisions of this Chapter is equivalent to a final judgment issued by the courts of Bahrain; the regulations shall set out the provisions governing affixing the executory formula thereto; and the judgment of the dispute settlement tribunal issued in accordance with the provisions of this Chapter shall be enforceable unless the Court of Cassation orders a stay of its enforcement .. Article (18) thereof provides that the Supreme Judicial Council shall supervise the proper conduct of work at the Chamber .. The provision in Article (26), appearing in Part Three alongside the heading regulating procedures before the Chamber, that (the rules prescribed in the Civil and Commercial Procedure Law 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 arrangements prescribed before it, (indicates) that the Bahraini legislature’s intention in these provisions taken together, as disclosed and indicated by their wording, which clearly conveys their intended meaning, is that it established (an independent judicial body) to undertake the settlement of disputes falling within the limits of its statutory jurisdiction pursuant to the provisions of (Chapter One of Part Two) of Decree-Law No. 30 of 2009, in accordance with the Rules of Procedure issued by Minister of Justice Decision No. 65 of 2009. A judgment issued therein is equivalent to a final judgment issued by the courts of Bahrain pursuant to Article (15) of the aforementioned Decree. A challenge seeking its annulment before the Court of Cassation pursuant to Article (13) is not considered an appeal by way of cassation, but a challenge of a special kind entrusted to the Court of Cassation for determination, departing 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 and keep pace with economic developments which the legislature considered the country’s interests would be served by its existence, in furtherance of a public economic interest relating to the paramount order of society, under the supervision of the Supreme Judicial Council. The legislature deemed what is issued by that Chamber equivalent to final judicial judgments that are enforceable. Indeed, it assigned to it jurisdiction over a particular type of case in which the value of the claim exceeds (500) thousand Bahraini dinars, and removed the original authority conferred on the courts of Bahrain to hear them and to hear claims exceeding that value, or on any body having judicial jurisdiction, by expressly providing so in Article (Nine) of the aforementioned Law, so that it alone, to the exclusion of all others, has jurisdiction to hear them, given the special nature of those disputes. Accordingly, the judgment issued by that Chamber fulfils all the conditions required by the legislature under Article (199) of the Law of Procedure and conforms to the provisions of the Convention on the Enforcement of Judgments, as concluded by the challenged judgment. This is not altered by the appellant’s complaint that the challenged judgment disregarded her repudiation—before the Dispute Settlement Chamber in Bahrain—of the photocopy of the contract forming the basis of the respondent’s action in which the foreign judgment was issued, which included the parties’ agreement that the Chamber had jurisdiction to hear the dispute, the Chamber’s failure to administer an oath to her in support of reliance on the respondent’s regularly kept books, and her insistence that the Bahraini courts lacked jurisdiction. Her challenge in this respect is inadmissible, since an application to enforce a foreign judgment does not go beyond a level of litigation and is not an appeal against that judgment. The courts of the State requested to enforce it may not examine the merits, as these are factual matters relating to the action in which the foreign judgment was issued. Moreover, the foreign judgment did not rely in its ruling on that photocopy, but inferred the appellant company’s obligation for the loan amount in dispute from the respondent’s regularly kept books, and accordingly held it obliged to pay the loan amount to the respondent in the State of Bahrain. The obligation is thus to be performed in the State of Bahrain, giving its courts jurisdiction to hear the dispute pursuant to paragraph (c) of Article Four of the aforementioned Convention. The challenged judgment therefore cannot 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 contravened public policy in Kuwait because it was issued at a single level of litigation rather than two levels. It is apparent from the foregoing that the foreign judgment has the force of res judicata in the State of Bahrain, and thus fulfils the conditions for its enforcement in the State of Kuwait in accordance with the rules of the Convention on the Enforcement of Judgments, Judicial Delegations and Notifications in the States of the Cooperation Council for the Arab States of the Gulf, referred to above. This is particularly so since this judgment became irrevocable after the appeal against it by way of cassation was dismissed by the judgment issued by the Court of Cassation in the State of Bahrain in Appeal No. 369 of 2013 on 5/5/2014—a copy of which was submitted among the papers. Accordingly, the appeal in its entirety is without foundation.