Arbitration in accordance with Kuwaiti legislation
Arbitration
Kuwait knew arbitration before the public judiciary was known, as people used to refer to the sheikh of the tribe or to the wise man who was famous for giving opinion and wisdom to settle their dispute and solve the problem between them amicably without the need to use force or personal justice. Arbitration is the basis of the judiciary, as it created the idea of resorting to a neutral third party to settle the dispute between the litigants in a way that achieves justice for both parties.
The idea of resorting to a neutral party to judge among the litigants of justice took root, to give rise to the idea of an organized judiciary by the ruling authority of the country.
Both arbitration and the judiciary are a means of settling the dispute between the litigants amicably, but the judiciary has become the public way and the holder of general jurisdiction in separating the litigants.
However, the fact that the judiciary is the public path does not prevent a breach of the public principle for the enforcement of contested rights through the private judiciary (arbitration).
Concept of arbitration:
Arbitration is the way that the litigants choose to settle disputes arising or that may arise between them, by choosing a person (natural or institutional) to settle their disputes instead of the competent judicial court, by means of the authority granted to him under the opponents' agreement to arbitrate instead of submitting their dispute to the judiciary .
The main source of the arbitrator’s authority is the arbitration agreement to which the litigant’s will has been directed, which may be translated before the dispute in an arbitration clause to be included in the contract concluded between them. But if the dispute occurred without the presence of any text referring the consideration of the dispute to it, and then the parties ’will agreed to resort to arbitration, then this translation is done. The will through an arbitration stipulation drawn up by the parties and appended to it by their signature so that they can submit the issue of the dispute to arbitration instead of the judiciary.
In addition, there are no court fees paid to hear the arbitration dispute as is the case for cases pending before the courts, but the arbitrators charge fees that may be relatively expensive. The litigants usually aim to resort to the arbitration system to settle the dispute due to the simplicity of the arbitration procedures, as they are usually easier than the litigation procedures in the courts. Also, arbitration is often carried out on the same level of litigation, which leads to expediting the settlement of the dispute, which calls for employers to resort to it to avoid the slowness of the judiciary that is inconsistent with their interests. This may be considered a negative for the arbitration system as it deprives the litigants of multiple degrees of consideration of the issue of the dispute in the judiciary, and thus there may not be sufficient control over the arbitrators ’judgments.
The litigants' recourse to arbitration avoids the openness that characterizes the judiciary's work and its rulings, as the law does not stipulate the openness of arbitration sessions as is the case in the judiciary.
The arbitration system is characterized by being appropriate to the special circumstances of its parties, as the whole matter is subject to the litigants ’agreement as they see fit for their work in terms of the dates of the sessions and their venue.
Arbitration is also distinguished by the fact that the parties to the dispute often choose an arbitrator with special technical expertise in the subject of the dispute or trusted in their field of work. This saves him from delegating an expert, which saves with him time and expenses.
Given the vital role of arbitration and the many advantages it enjoys as a judiciary parallel to the general judiciary, most recent legislation has recognized the arbitration system alongside the state's judiciary, and the judicial function is no longer exclusive to the judiciary.
The Kuwaiti legislator has adopted the arbitration system and was stipulated in Emiri Decree No. 19 of 1959 in Article 39, then the legislation followed, and its own rules regulated it in the Civil and Commercial Procedures Law No. 38 of 1980. Kuwait also joined by Law No. 19 of 1977 - to the Agreement on Legal and Judicial Cooperation In civil, commercial, penal and personal status matters. It also joined by Law No. 10 of 1978 to the New York Convention of 1958 regarding recognition of the implementation of foreign arbitration provisions.
Accordingly, the Kuwaiti legislator has issued legislation establishing the arbitration bodies through emiri decrees and ministerial decisions, such as the Minister of Trade and Industry Resolution No. 35 of 1983 regarding the internal regulations of the stock market, which includes the idea of compulsory arbitration in all disputes related to the transactions that take place in the market.
In view of the expansion and prosperity of trade and the diversification of transactions between individuals and companies in Kuwait, Law No. 11 of 1995 was issued regarding judicial arbitration.
The distinction between arbitration and judiciary:
The judiciary facility is appointed by the state to settle disputes according to the state's law, while in arbitration, arbitrators are chosen by the litigants in the arbitration agreement to apply the law to be applied to the arbitration dispute, which is usually specified in the arbitration agreement.
Accordingly, the general jurisdiction is for the judiciary, which is the general principle. As for arbitration, its scope is limited only to disputes or rights in which individuals have peace. Individuals' freedom to resort to arbitration is not absolute.
The judiciary issues judgments that have executive power merely because they are issued. As for arbitration decisions, they are binding on the litigants, but an execution order from the judiciary is required for arbitration decisions.
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