Kuwait Court of Cassation principle number 59

Summary: - Capital Markets Authority. The legislature provided it with a special framework under Law 7/2010 concerning its establishment. It also assigned it powers of far-reaching effect to enable it to perform its role in regulating, raising awareness of, and supervising securities activity, so as to ensure fairness, competitiveness, and transparency, prevent conflicts of interest, and protect participants in its activities, thereby ensuring that securities markets are not disrupted and remain stable in a manner serving the objectives of economic development. - 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. - 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, to the exclusion of all others. - A judgment issued by the competent circuits of the Court of Appeal, "criminal or non-criminal," in disputes arising under the Capital Market Law. It is the final stage of litigation. Consequence thereof. Their judgments may not be challenged by any avenue of appeal. Reason therefor. Achieving prompt stability for participants in securities dealings and fostering the required climate of confidence, transparency, and competitiveness so as to achieve the objectives of this economic activity. - Cassation appeals against judgments issued by these appellate circuits. Impermissibility thereof. An example concerning a judgment issued by the Administrative Capital Markets Circuit of 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 Activity that: "A court called the ‘Capital Markets Court’ shall be established at the Court of First Instance. Its seat shall be designated 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 concerning 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 issued by them, irrespective of the value of those disputes. These circuits shall be constituted of 3 judges, at least one of whom shall hold the rank of counsellor. 3-........"; the provision in the first paragraph of Article (112) of the same Law that "A criminal circuit and 1 or more specialized non-criminal circuits shall be assigned at the Court of Appeal to hear appeals against judgments issued by the Capital Market Court, and their judgments shall be irrevocable and may not be challenged by any avenue of appeal"; and the provision in Article (164) thereof that "This Law shall be deemed a special law, and its provisions shall likewise be deemed special provisions, and every provision in a general or special law that conflicts with its provisions is repealed" indicate that the legislature established a special framework under the aforementioned Law No. 7/2010, under which it established the Capital Markets Authority and directed to it powers of far-reaching effect to enable it to perform its role in regulating, raising awareness of, and supervising securities activity, so as to ensure fairness, competitiveness, and transparency, prevent conflicts of interest, and protect participants in its activities. This ensures that securities markets are not disrupted and encourages its 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 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 for the speedy conclusion of all these actions and disputes. It vested exclusive jurisdiction to determine them in the criminal and non-criminal circuits of the Capital Market Court at the Court of First Instance, and made the judgment issued by the competent circuits of the Court of Appeal (criminal or non-criminal) the final stage, deeming their judgments irrevocable and not open to challenge by any avenue of appeal. This accords with the nature of these actions and conclusively and expressly resolves, through the judgment issued by the competent circuit of the Court of Appeal, the dispute or action in which it is issued, thereby achieving prompt stability for participants in securities dealings, positively affecting safe trading and those engaged in it, and fostering a climate of the requisite confidence, transparency, and competitiveness that achieves the intended objectives of this important economic activity. That being so, the papers establish 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 under Minister of Justice Decision No. 111 of 2010, seeking annulment of Decree No. 407 of 2011 insofar as it terminated the membership of those referred to on the Board of Commissioners of the Capital Markets Authority, together with the resulting consequences. As such—and this is undisputed—it is one of the disputes arising from the application of the aforementioned Law No. 7 of 2010, jurisdiction to determine which is vested in the Capital Markets Court at the Court of First Instance. The Administrative Capital Markets Circuit issued 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, which was itself established pursuant to Minister of Justice Decision No. 111 of 2010 in implementation of Law No. 7 of 2010. It determined the appeal 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 appeal as set out above, may not be challenged by cassation, that avenue being legally closed pursuant to Article (112) of the aforementioned Law No. 7 of 2010.