TORTS IN KUWAIT LAW Essay

The tort law is one of the fundamental branches of the existing legal systems in many countries of the world, including the UK, the US, and Kuwait. In this respect, it is worth mentioning the fact that the development of the torts law in Kuwait is closely intertwined with the UK’s torts law because Kuwait was exposed to the impact of the UK that defined the development of the legal system of Kuwait, to a significant extent. At the same time, the torts Kuwait law has incorporated specific national elements, which mirror not only legal traditions of Kuwait but also its cultural norms and traditions. Therefore, the torts Kuwait law is affected by the development of the torts law in the UK but still Kuwait has developed its own torts law, which mirrors local norms and traditions, and meets needs and interests of the local population.
BACKGROUN INFORMATION
In actuality, the torts law comprises an integral part of the legal system of Kuwait. However, in the course of the development of the national legislation and legal system along with the development of the judicial system, the torts law was brought in to Kuwait by the UK, which established the protectorate over Kuwait, which ended in 1961. In such a context, it is quite natural that the legal system and judicial system of Kuwait was influenced by the British legal and judicial system. At this point, it is possible to dwell upon the development of the legal and judicial system in Kuwait briefly. Under the 1959 Law Regulating the Judiciary, Kuwaiti courts are competent to hear all disputes concerning personal status, and civil, criminal and commercial matters. There are three levels of courts: courts of first instance (having several divisions, including personal status) in every judicial district; High Court (with five divisions, including personal status); and the Supreme Court (divided into the Division of High Appeal and the Cassation Division). For the application of personal status laws, there are three separate sections: Sunni, Shi’i and non-Muslim (for the application of family laws of religious minorities). After judgments by the courts of first instance, appeals lie with the High Court, and then with the Cassation Division of the Supreme Court (Amin 1991).
The torts law in Kuwait emerged as an integral part of the new legal and judicial system, which was shaped under the impact of the British system. In fact, the UK had its legal and judicial system, which had a long history and even after the end of the British protectorate over Kuwait, the latter still borrowed a lot from the English law, including basic principles and norms of the torts law. On the other hand, the torts law in Kuwait involves local specificities to meet socially acceptable standards of justice and social norms.
ANALYSIS
In this respect, it is quite natural that torts law in Kuwait includes basic categories that can be found in other countries, where norms of the English law are applied. In fact, it is possible to distinguish several categories of the torts law in Kuwait. First category is negligence, which implies a tort that depends on the existence of a breaking of the duty of care owed by one person to another (Ballantyne, 1986). Another category is statutory torts, which impose duties on private or public parties, but they are created by the legislature, not the courts (Mahmood, 1995). Furthermore, nuisance is a complex category, which in torts in Kuwait law includes three elements, including activities and conditions that are harmful or annoying to others; harm caused by the aforementioned activity or condition; legal liability that arises from the combination of the two (Amin, 1985). This means that, at first, some actions or conditions should have taken place. Then, these actions or conditions should have caused some harm. And only after that the legal liability starts in terms of the torts law in Kuwait. Fourth category is defamation, which implies tarnishing the reputation of someone. In this regard, the defamation in relation to the authority, especially in relation to Emir and the royal family members, is considered to be a serious offense in the country and makes offenders liable to the legal prosecution. Also, it is possible to distinguish intentional torts that are any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so (Ballantyne, 1986). Finally, it is worth mentioning economic torts, which are torts that protect people from interference with their trade or business.
The torts law in Kuwait implies vicarious liability, which implies that one person is responsible for the harm caused to another person. In this regard, people have the right and possibility for their defense prior to the offense and after the offense in terms of the torts law in Kuwait.
Torts law in Kuwait includes remedies, which are paid off to a person to whom harm was caused. Remedies may include money or compensation in “damages” (Mahmood, 1995). At this point, it is worth mentioning the fact that compensations in damages are very popular in Kuwait, especially compared to western countries, such as the UK or the US. The remedies provide the possibility for compensations for harms being caused and the remedies complete the chain of the legal liability and protection of individuals from the violation of their rights and activities or conditions that may be harmful for them.
COMPARATIVE ANALYSIS
In fact, the torts Kuwait law is, to a significant extent, similar to that of the UK. At this point, it is worth mentioning the fact that the major principles of the torts law, norms and standards are similar in the UK and Kuwait. In this regard, the impact of the UK on the development of Kuwait, its legislation, legal system and judicial system becomes obvious. At the same time, Kuwait has implemented only basic elements of the torts law, instead of the sheer copying or imitating the UK’s torts law. At this point, it should be said that the torts Kuwait law aims at meeting social norms and standards, traditions of Kuwait and national legislative system. Court rulings are very important and often affect the decisions being taken in terms of the torts law. The specificities of the national court system and cases that took place in Kuwait defined the specificity of the national torts law.
Nevertheless, it is possible to find out some distinct features that make the torts Kuwait law particularly different from that of other countries, including the UK, which had a particularly significant impact on the torts Kuwait law. For instance, the issues related to the royal family and defamation are very important in the torts Kuwait law. In fact, individuals involved in the defamation of the royal family members are exposed to the legal liability and, what is more important, they may be vulnerable to the criminal prosecution on the premise that the defamation threatened to the national interests of Kuwait and was offensive in this regard. In such a way, the torts Kuwait law is stricter in this regard compared to the UK’s torts law, for instance.
Furthermore, the torts Kuwait law pays a lot of attention to compensation in damages. In this regard, the UK’s torts law as well as torts laws of other western or English speaking countries tends to remedies, which involving paying off money to individuals to whom harm was caused. In stark contrast, the torts Kuwait law tends to compensation in damages, which may acquire different forms depending on damages being caused.
In addition, it is important to place emphasis on the fact that religion and religious norms, rules and principles have a significant impact on the torts Kuwait law. Islam is the dominant religion in Kuwait and its norms and rules are often extrapolated on norms of the torts Kuwait law. As a result, the torts Kuwait law bears the imprint of Muslim norms and traditions. However, Kuwait tends to steadily separate religious norms from legal ones, but the impact of Muslim norms and traditions on the torts law is still quite significant.
CASES
The torts Kuwait law is original and unique. In this regard, it is possible to refer to cases, which involved Kuwaiti people and organizations. For instance, the Kuwait Airways case is particularly noteworthy. At the time of Iraq’s invasion of Kuwait in 1990 and subsequent occupation, the Iraqi government ordered its national airline, the Iraqi Airways Company (“IAC”), to appropriate the aircraft, equipment and parts inventory of the Kuwait Airways Corporation (“KAC”). KAC brought an action against IAC in the U.K. for damages as a result of the appropriation of its property. After lengthy proceedings, the U.K. courts awarded judgment against IAC for over $1 billion Canadian. KAC then had the Republic of Iraq joined as a second defendant in order to claim costs of the actions in the U.K. The U.K. High Court of Justice made a further order
requiring Iraq to pay $84 million Canadian in costs.
KAC sought to have the costs order recognized in Quebec. At issue was whether the Sovereign Immunity Act applied, and if it did, whether or not the actions by Iraq fell into the “commercial activity” exception in that Act. The Court held that all actions by a foreign state are prima facie entitled to protection under the Act, and that the onus was on KAC in this case to show that the actions of Iraq fell within one of the Act’s exceptions. The only exception argued in this case
was the “commercial activity” exception.
The Court held that it was not enough to determine whether the acts complained of were authorized or desired by Iraq, but rather that the nature of the acts must be examined to carefully ensure a proper legal characterization. To do so, it is necessary that the findings of fact made by the British judge be accepted. In this case, the U.K. court found that Iraq, the sole proprietor of IAC, controlled and funded IAC’s defense throughout the proceedings and participated in the commercial litigation in the hope of protecting its interest in IAC. In doing so, it was responsible for numerous acts of forgery, concealing evidence, and lies. While the initial seizure of the aircraft was a sovereign act, the U.K. litigation in which Iraq intervened concerned the retention of the aircraft, which was unconnected to the seizure of the aircraft. Therefore, the actions fell within the exception, and Iraq could not rely on the protection of the SIA.
CONCLUSION
Thus, taking into account all above mentioned, it is important to place emphasis on the fact that the torts Kuwait law is closely intertwined with the UK’s torts law. The legislation of Kuwait, its legal and judicial systems developed under the impact of the UK. As a result, today, it is possible to trace a lot of common elements between the torts law of Kuwait and the UK. On the other hand, the torts Kuwait law has preserved its uniqueness and originality. At this point, it is worth mentioning the fact that the torts Kuwait law is vulnerable to the impact of Muslim traditions, which affect consistently the essence of cases involved in the torts law and their outcomes.