The Independence of the Capital Markets Authority in light of Kuwaiti Constitution Provisions and Relevant Legal Texts (Part One)
Dr. Bilal Aql Al-Sanadid
Associate Professor of Public Law – Kuwait International Law School & Advisor at Council of Ministers General Secretariat
The development of Kuwait’s Capital Market is closely tied to law No. (7) of 2010 regarding the Establishment of the Capital Markets Authority and Regulating Securities Activities. Article (2) of this law stipulates the establishment of an independent public authority with legal status supervised by the Minister of Commerce and Industry, called the “Capital Markets Authority.”
This study highlights the necessity for an integrated study that sheds light on the constitutional and administrative aspects of the Authority’s work as an economic public utility. This necessity stems from the crucial role that the Authority plays in the fields of investment and trade; a role that occupies “the forefront in the business of citizens,” according to the Explanatory Note of the Kuwaiti Constitution. In addition, the success or failure of the Authority is a subject of exceptional interest to Kuwaiti public opinion and those working in economic affairs.
The study calls for the examination of the extent of the Authority’s independence by answering questions on how wide or narrow are the limits through which it exercises decision-making powers in managing its affairs. This, in turn, raises questions about its relationship with oversight bodies and the extent of the supervising minister’s responsibility over its actions politically.
In order to achieve its objectives, the study uses a descriptive and analytical methodology. The study starts with an overview of the Authority’s work as a specialized economic public facility in terms of its relationship to provisions of both private and public law. The first section of the research explores aspects of particularity that characterize administrative decentralization in Kuwait. The second section touches upon the functional dimension of the Capital Markets Authority as a specialized facility, its main role and the importance of its work locally and abroad.
After drawing a clear framework of the Authority’s work, the study proceeds, in the second chapter, to measure the extent of its specific independence, while recognizing the need for political control over it. The first section highlights the most prominent features of the CMA’s functional, financial, administrative and legal independence. The second section concludes by exploring the narrow framework of the political responsibility that the competent minister bears in his exercise of the duties of judicial supervision over the work of the Capital Markets Authority.
Keywords: Structural decentralization, functional specialization, financial and administrative independence, administrative supervision, political responsibility.