Khaled Salem Al Saeedi
Supporting Faculty Member
Kuwait International Law School

Abstract:

If the judgment of the aforementioned Cassation Chamber is not, in fact, the only judgment that presented the idea of giving up its international jurisdiction in favor of a foreign court on the basis of the referral of the link, it is certainly one of the rare judgments in this regard. The judgment confirmed the authenticity of the refusal to refer the case to an Egyptian court for liaison, thus rejecting the idea of giving up its international jurisdiction in favor of a foreign court in general, and in particular the image of referral to the liaison in favor of a foreign court which is – in the facts of the judgment subject to comment – the Abdeen Court of Personal Status in the Republic of Egypt.
It was based on the rule that the Kuwaiti courts’ referral of the case brought before it in favor of a foreign court is not permissible. And that the concept of referral stated in the Kuwaiti Code of Pleadings is that it is only for a Kuwaiti court; and that the agreement on legal and judicial cooperation between Kuwait and Egypt does not contain anything to the contrary. After that, judicial rulings were issued by the Courts of Cassation which rejected the idea of ​​relinquishing international jurisdiction to courts in other forms such as refusal by individuals to submit voluntarily to the jurisdiction of a foreign judiciary.
What I mean by the idea of giving up jurisdiction is that national courts give up their international jurisdiction in favor of a foreign court that is also competent; for the connection between the two lawsuits, or because they are considering the dispute itself, or for any other reason. Then, the verdict which will be issued by that court to which the case is referred, is most guaranteeing of the effects of this verdict, and the most likely of implementation.
Accordingly, the commentary was – in analysis and criticism – revolving around proving that the Kuwaiti project did not prohibit the abandonment of its jurisdiction in principle, and it can be used in various forms, including the referral of the association in favor of a foreign court when certain conditions are met. This is what our Kuwaiti judiciary must adopt for many fundamental reasons, including, but not limited to, the necessities of international judicial cooperation, especially in private international disputes, with a view to protecting the legitimate and transnational interests of individuals, and preventing conflict of provisions and impossibility of their enforcement in order to attain the utmost proper course of justice.

Keywords: Kuwaiti pleadings law, international jurisdiction of Kuwaiti courts, jurisdiction, referral to a foreign court, the court most appropriate to ensure the effects of the judgment.

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