The Parochial Kuwaiti Arbitration Regime: A Case Study of the Extension of Arbitration Agreements to Non-Signatories
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Authors
Eldib, Mohamed Morad
Date
2021-03
Type
thesis
Language
en
Keyword
International commercial arbitration , Extension of arbitration , Non-signatories , Third parties in arbitration , Governing law , Consent in arbitration , Implied consent , Alternative dispute resolution
Alternative Title
Abstract
As embodied in the Kuwaiti government’s recent initiative, the New Kuwait Development Plan 2035, Kuwait’s aspirations to decrease its habitual oil dependency through economic diversification has led the country to undergo major law reform and regulation overhaul. However, forgotten in this burst of regulatory innovation are the statutes that collectively govern arbitration in Kuwait. The continuing underdevelopment of Kuwait’s arbitration laws undermines the country’s efforts to materialize its aspirations be an attractive destination for foreign direct investment.
Arbitration is now considered a principal method—in some industries and regions, the principal method—of resolving international commercial disputes. However, arbitration is not equally perceived across all jurisdictions. Some jurisdictions, including Kuwait, maintain a parochial perspective on arbitration as an exceptional means of dispute resolution that ousts the inherent jurisdiction of national courts, leading them to lay idiosyncratic requirements as to the form of a valid arbitration agreement and restrict arbitral jurisdiction more generally. Conversely, most jurisdictions have by now adopted a more liberal position towards arbitration as a method of dispute resolution alternative—rather than subordinate—to court litigation.
Kuwaiti private law is largely based on Egyptian law, which was in turn heavily influenced by French law. Despite the continuing similarity between the Kuwaiti, Egyptian and French legal systems, they vary significantly in the way they perceive arbitration. As this thesis will argue, these divergent perceptions of arbitration explain, to a great extent, the disparity of doctrines and legal principles recognized under each of the jurisdictions’ laws, scholarly writings, and court rulings. In particular, the delicate issue of extension of arbitration agreements to non-signatories, which is regulated neither by international instruments nor by national laws, remains largely unsettled. This particular issue demonstrates the disparity between the three jurisdictions to deal with complex questions such as arise in modern international commercial arbitration practice.
In order to understand the current state of Kuwaiti law and how it might be improved, this thesis examines how Kuwait, Egypt, and France approach a range of issues that arise in international arbitration, focusing in particular on a case study of the extension of arbitration agreements to non-signatories. It is hoped that this research will generate effective reforms to Kuwaiti arbitration laws that will also be consistent with the Kuwaiti legal system, in order to support the country’s aspirations of becoming an international financial hub.