Obtaining a judgment abroad is only half the road. A foreign judgment is not automatically enforceable in Kuwait; it requires a court order conferring executory force after defined conditions are verified.
The fundamental difference: enforcing a foreign arbitral award is far easier than enforcing a foreign court judgment, thanks to the international conventions governing it. That is a consideration for the drafting stage, not the dispute stage.
Contents
1) The General Rule
The Civil Procedure Law governs enforcement of foreign judgments. As a rule a judgment of a foreign court is not enforced in Kuwait without obtaining an order for enforcement from the competent court.
- The court does not re-examine the merits or review the correctness of what was decided.
- Its review is confined to whether the conditions for enforcement are met.
- A foreign judgment does not dispense with the order however final it is in its own country.
An important rule: the judge's review is formal, not substantive. A party objecting to the justice of the judgment itself has mistaken the entry point — objections must rest on the failure of a condition of enforcement.
2) Conditions for an Exequatur
- Jurisdiction of the foreign court under international jurisdiction rules.
- Absence of exclusive jurisdiction of the Kuwaiti courts over the dispute.
- Valid service on the parties and the opportunity to defend.
- Finality of the judgment and its enforceability in the country of origin.
- No conflict with a prior judgment or order of the Kuwaiti courts.
- Nothing contrary to public policy or morals.
The most contested condition: valid service. Many foreign judgments are given in default, and pleading defective service or denial of the opportunity to defend is the strongest objection available.
3) Reciprocity and Conventions
Reciprocity
It is generally required that the judgment's country enforce Kuwaiti judgments in return. Its absence is a substantial obstacle.
Conventions
Bilateral and regional conventions — such as the GCC and Arab judicial cooperation agreements — facilitate enforcement and take precedence over the general rules.
Order of enquiry: look first for an applicable convention between Kuwait and the country of origin. Its existence shortens the road and changes both conditions and procedure.
4) Public Policy as a Bar
Public policy is the most frequently invoked objection, covering:
- What contradicts the provisions of Sharia and its settled principles.
- What touches the State's sovereignty or security.
- What breaches fundamental principles of justice, such as the right of defence.
- Judgments imposing interest or obligations the legal system does not recognise.
A fine point: breach of public policy is assessed by reference to the effect of the judgment when enforced in Kuwait, not by the mere fact that the foreign law differs from domestic law.
5) Foreign Arbitral Awards
These enjoy an easier regime thanks to the international conventions on the recognition and enforcement of arbitral awards.
- The rule is recognition and enforcement; refusal is an exception on defined grounds.
- The grounds of refusal are exhaustively listed and not to be extended.
- The court does not review the merits or the correctness of the arbitrator's conclusion.
- The burden of establishing a ground of refusal rests on the objector.
A drafting consequence: including an arbitration clause in an international contract spares the creditor the enforcement battle later. See our guides to arbitration and annulment of awards.
6) The Application Procedure
- Filing proceedings seeking an order to enforce the foreign judgment before the competent court.
- Annexing an official copy of the judgment, legalised and officially translated.
- Establishing its finality and enforceability in the country of origin.
- Establishing valid service and the exercise of the right of defence.
- Obtaining the order, then proceeding with ordinary enforcement.
A recurring formal obstacle: a gap in the chain of legalisations or an uncertified translation halts the application. Prepare them before filing, not after.
7) Grounds of Objection
- Lack of jurisdiction of the foreign court, or exclusive jurisdiction of the Kuwaiti courts.
- Defective service or breach of the right of defence.
- Lack of finality, or the judgment being under challenge at home.
- Conflict with a prior Kuwaiti judgment.
- Breach of public policy or morals.
- Absence of reciprocity and of any convention.
8) Practical Guidance
When contracting
- Prefer an arbitration clause in international contracts.
- Check whether an enforcement convention exists.
- Require local security where possible.
- State the governing law clearly.
Before seeking enforcement
- Trace the debtor's assets in Kuwait first.
- Complete legalisations and translation.
- Obtain a certificate of finality.
- Consider a parallel precautionary attachment.
Professional reminder: obtaining an enforcement order with no identified assets in Kuwait is effort without fruit. Trace the assets before beginning the process.
Have a foreign judgment or international award to enforce in Kuwait — or facing an enforcement application against you? Contact Attorney Meshari Obaid Al-Enezi — Yumnaak Law Firm.
