Cases of appealing the nullity of an arbitral award

The Kuwaiti legislator allowed the litigants, by way of exception, and in specific cases, exclusively, to appeal the final arbitration ruling with an original claim of nullity, which is filed under the usual conditions and by special procedures before the court originally competent to look into the dispute, so that the litigants do not take that as a means to reach an obituary against the arbitration ruling with the same obituary aspects. Which serves as a reason for appealing the judgments, otherwise it would be possible to challenge the nullity of the arbitral award – and as the explanatory memorandum of the Kuwaiti Code of Pleadings disclosed – misses the basic motives of the stakeholders of choosing the short arbitration path and involves returning them to the court arena through a back door.

What is the claim for the nullity of the arbitration award?

It is an original and declarative lawsuit filed by the defendant in the arbitration litigation before the competent court in accordance with the provisions of the law agreed to be applied, if there is one of the cases of invalidity stipulated exclusively in this law.

Cases of appealing the nullity of the arbitral award in accordance with the text of Article 186 of the Kuwaiti Code of Procedure:

The principle is that the arbitrator’s judgment may not be appealed unless the litigants agreed, prior to its issuance, to the contrary, and it is subject to the rules established for appealing judgments issued by the courts.

The Kuwaiti legislator permitted any interested party to request an appeal for the nullity of the final arbitration ruling in the following cases, even if it was agreed to the contrary before its issuance:

First: If the arbitral award was issued without an arbitration agreement or based on an invalid arbitration agreement, or if it was forfeited by exceeding the deadline, or if the award has gone beyond the limits of the arbitration agreement.

The arbitration agreement is the basis of the arbitration process, from which the arbitral tribunal derives its authority to decide the dispute that is the subject of the arbitration agreement, whether in relation to the procedures or the applicable law, and that the absence of an arbitration agreement in the first place or the existence of a void agreement defective with a defect of will such as error, fraud, coercion and exploitation is a reason One of the reasons for the invalidity of the arbitral award, and also if the arbitral award was issued after the expiry of the period specified for its issuance, whether this period was agreed upon or legally specified, then it shall be a measure issued after the expiry of the arbitrator’s mandate in the dispute, and therefore either of the parties may file a claim to invalidate the arbitral award.

In the ruling of the Kuwaiti Court of Cassation No. 148 of 1986 dated February 18, 1987, the Commercial Department stated that the arbitration award, although it is a court adjudicating a dispute and has its argument preventing the re-submission of the dispute which it settled to the judiciary a second time, is a judicial act of a special nature that does not derive from In which the arbitrator has jurisdiction from the law like court judges, but derives it from the agreement of the litigants to arbitrate.

Second: If one of the reasons for which a petition for reconsideration may be sought is realized

A petition for reconsideration is the unusual way to challenge judgments issued in a final and non-appealable form, if one of these cases is realized, namely:

  1. If the opponent committed cheating that would affect the judgment
  2. If the verdict was based on documents for which, after its issuance, an acknowledgment of their forgery was obtained, or if it was judged to be forged, or if it was based on the testimony of a witness who ruled after its issuance that they were forged.
  3. If, after the issuance of the judgment, the petitioner obtained conclusive documents in the case, his opponent would have prevented their submission
  4. If the judgment decides something that the litigants did not ask for, or more than what they requested
  5. If the utterance of the judgment contradicts each other
  6. If the judgment is issued against a natural or legal person who was not properly represented in the case, except in the case of the treaty prosecution.

Third: If a nullity occurs in the arbitral award or a nullity in the procedures has an effect on the award

The arbitrator’s judgment must include all the essential data relating to arbitration, which requires that the judgment include a copy of the arbitration agreement to verify the issuance of the decision within the limits of the arbitrator’s authority derived from the arbitration agreement to take care of the litigants, as well as include a summary of the litigants’ statements and documents, the reasons for the judgment and its text The date of its issuance, the place in which it was issued and the signatures of the arbitrators, and the lack of a statement from these essential data results in the invalidity of the award.

Also, the inclusion of the judgment on one of these previous statements does not replace the existence of any other data related to the dispute subject of the arbitration, because the judgment must be in itself indicative of the completion of the conditions for its validity without accepting the completion of what is missing from the essential data in any other way, otherwise a claim may be filed for the invalidity of the arbitrator’s judgment issued permanently. (Kuwait Court of Cassation Appeal No. 332 of 2000 dated 25/3/2002)

The request to challenge the nullity of the arbitral award is not related to the subject matter of the dispute before the court, nor to the law governing it in terms of the subject matter. Rather, it is related to the award as a procedural act or related to the same litigation procedures that precede the issuance of the arbitral award. (Kuwait Court of Cassation, Appeal No. 340 of 2004 dated 25/4/2005)

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