KUWAIT CITY, Aug 14: The decree amending the Civil and Commercial Procedures Law, approved by the Council of Ministers recently, introduces several amendments, including stricter regulations on the dismissal of judges, an increase in bail amounts, and keeping pace with digital transformation efforts by adopting electronic litigation to expedite processes and reduce time and effort, reports Al-Seyassah daily.

The amendments, which take effect from the date of their publication in the official gazette, include the following: The texts of Articles 40, 45-bis, 106, 108, and 109 of the Civil and Commercial Procedures Law shall be replaced with the following:

Article 40 - “If the lawsuit pertains to the validation, annulment, or termination of a contract, the value of the lawsuit shall be assessed based on the value of the contract amount.” In cases involving exchange contracts, the value of the lawsuit shall be estimated based on the higher of the two exchanged amounts If the lawsuit concerns the validation, nullification, or termination of an ongoing contract, the value shall be estimated based on the total financial consideration for the entire duration of the contract. If the contract has already been partially executed, the value of a lawsuit seeking its termination shall be estimated based on the remaining term. For lawsuits involving eviction or the delivery of property, the estimation shall follow the same rules outlined in the previous paragraph. In cases involving a dispute over contract renewal, the value of the lawsuit shall be based on the financial consideration for the specific term in dispute.

Article 45-bis - “It is permissible to use the 'Electronic Litigation System' for court clerk management and the use of an approved electronic signature. This system covers various functions, including filing lawsuits, appealing judgments, paying fees, submitting documents, depositing memoranda, serving judicial papers, and conducting court sessions remotely using electronic audio and video communication technology between the parties to the lawsuit, as well as issuing judgments, orders, and enforcement procedures. Data generated by electronic systems shall be considered the original where the law requires direct action on the original document. The Electronic Litigation System Regulations are issued by a decision of the Minister of Justice and specify the rules and provisions to be followed. These may include, when necessary, rules related to establishing case preparation or appeal offices and their operational mechanisms. All provisions are subject to this law and under the Electronic Litigation System.”

Article 106 - “If a judge has grounds for recusal and does not step down, the opposing party may request their recusal. The recusal request is submitted by means of a report at the Clerk’s Office, signed by the applicant or their authorized representative holding a special power of attorney. The power of attorney must be attached to the report. The recusal report must state the reasons for recusal and be accompanied by any supporting documents. The applicant must deposit a guarantee of KD 200 upon submitting the report. This guarantee is multiplied by the number of judges involved. The Clerk’s Office shall not accept the recusal report unless proof of the guarantee deposit is provided. A single guarantee shall suffice for each judge if multiple applicants submit their recusal requests in a single report, even if the reasons for recusal differ. If the recusal request is rejected, forfeited, dismissed, or declared invalid, the court shall impose a fine of no less than KD 500 and no more than KD 1,000.

This fine shall be multiplied by the number of judges to be recused. In such cases, the guarantee shall be confiscated by law.” Article 108 - The Clerk’s Office shall submit the recusal report to the President of the Court. If the person to be recused is the President, the report shall be submitted to their representative. The person receiving the report shall immediately inform the judge whose recusal is requested. The judge must respond in writing to the facts and reasons for the recusal within two working days following their review. If the judge does not respond within this period or acknowledges the reasons for recusal, and these reasons are legally valid, the President of the Court shall issue an order for their removal. If the judge responds to the reasons for recusal but does not acknowledge any reason legally valid for recusal, the person to whom the report was submitted shall issue an order for the judge’s removal.

The report shall then be submitted to the circuit handling the appeal, which will set a date for its urgent hearing. The Clerk’s Office shall notify the appellant, the judge, and the other parties to the original case of this date, allowing them to submit any appeals under the previous article. The procedures for the appeal and its ruling must be followed even if the appellant decides to waive the appeal. The ruling on the appeal shall be issued in an open session within no more than one month from the date of the hearing.

Article 109 - The submission of the first appeal shall result in the suspension of the original case until a final ruling is issued. However, the court handling the appeal may, in urgent cases and based on a request from one of the parties, appoint a judge in place of the one whose dismissal was requested. An assignment may also be requested if the initial ruling was issued rejecting the appeal and the appeal was further contested. The submission of a request to dismiss a member of the court handling the appeal shall not result in the suspension of its hearing.

However, if the dismissal of any member of this court is requested, based on a request from one of the parties, the court may order the suspension of the appeal hearing, in which case the provisions of the first paragraph of this article shall apply. Article 107, final paragraph - “It is not permissible to request the recusal of the same judge more than once in the same case.”

Article 43-bis - “The value of compensation claims arising from civil liability filed against the air carrier shall be estimated in Special Drawing Rights (SDR) units, equivalent to their value in Kuwaiti dinars according to the valuation adopted by the International Monetary Fund on the day the case is filed. This estimation does not include any changes in the value of the units that occur after the case is filed.”

Article 109-bis - “The submission of any other request for recusal, whether by the first party requesting recusal or any other party, shall not result in the suspension of the original case. However, the court, considering the request for recusal, may, based on a request from one of the parties, order the suspension of the original case, and in this case, the provisions of the previous article shall apply.”

The explanatory memorandum highlights that determining the jurisdiction of courts and the distribution of work between them sometimes depends on the value of the judicial request submitted to them. The rules for estimating the value of the lawsuit contained in Articles 37 to 44 of the Civil and Commercial Procedures Law issued by Decree-Law No. 38/1980 are used solely to determine the jurisdiction and final quorum of the courts.

They have no relation to estimating the fees for the lawsuit, which is carried out under the provisions of the Judicial Fees Law No. 17/1973, as amended by Decree-Law No. 78/2025. The principle of judicial impartiality is founded on a fundamental rule - the necessity of the litigant’s confidence in the judge, and that the judgment is based solely on the truth, without bias or whim. Legislative texts regulating judicial affairs have explicitly affirmed the support and guarantee of this impartiality.

At the same time, they provide the litigant, if there is serious evidence raising suspicion of compromised impartiality, a means to prevent the questioned judge from hearing the case. This is a fundamental right, and thus the right to recuse a judge from hearing a particular dispute is one of the fundamental rights linked to the right to a fair trial itself. Practical experience and official statistics have shown that some parties seeking to delay litigation continue to file recusal requests as a tactic of spite and stubbornness in disputes, disregarding the harm this causes to the reputation, standing, and dignity of judges, and casting doubt on their integrity and impartiality. The current legislative provisions have proven insufficient to address this issue.

Although the Civil and Commercial Procedures Law has been in effect for many years, most of its provisions regarding bail amounts and penalties have not been updated, despite the economic changes in recent years. These changes include high inflation rates, shifts in per capita income, fluctuations in currency exchange rates, and a decline in the currency’s purchasing power. The legislator’s original authority in regulating rights is discretionary, unless limited by constitutional restrictions.

Discrimination between individuals is prohibited in their right to access their natural judge or within the procedural and substantive rules governing judicial litigation of claimed rights. The rules should be uniform for all litigation, whether in claiming rights, defending them, or appealing judgments. The guarantees stipulated in the aforementioned Civil and Commercial Procedures Law aim to ensure individuals exercise their right to litigation seriously, whether by filing lawsuits or appealing judgments.

Electronic litigation
Electronic litigation offers many advantages, including speeding up procedures, saving time and effort, reducing expenses, and allowing litigants to attend court sessions remotely. For all of the above, and since the Amiri Order issued on May 10, 2024, stipulated in Article 4 that laws shall be issued by decree-laws, it was deemed necessary to prepare the present draft decree-law to amend the provisions of the aforementioned Civil and Commercial Procedures Law in order to keep pace with all the aforementioned developments.

Advantages of e-litigation
 It is noted that the e-litigation system is considered an optional means for litigants and is not intended to replace traditional litigation. Its benefits became especially clear during the global spread of the COVID- 19 pandemic and the accompanying decisions to suspend government agencies, including courts. The pandemic prevented individuals from exercising their constitutional rights through traditional means, while this system served as the only viable option for those seeking access to the judiciary. E-litigation also offers the advantage of speeding up procedures, saving time and effort, and reducing expenses, as it allows litigants to attend court sessions remotely. It benefits judges as well, enabling them to review electronic case files and conduct deliberations and issue rulings electronically. E-litigation also extends to executive procedures and orders, allowing for faster execution compared to traditional methods.

Main amendments
1. Replacement of Articles 40, 45 bis, 106, 107, and 109 of the aforementioned Civil and Commercial Procedures Law with new texts.
2. Establishment of the legal basis for the comprehensive “electronic litigation system,” including the possibility of creating a case or appeal preparation office in each court. This office will handle preparatory tasks for the electronic file from registration until the first session, such as examining data, completing missing documents, registering them in the system, and communicating with the parties digitally regarding their litigation.

3. The bail for recusal requests has been set at KD 200. If the recusal request is rejected, forfeited, inadmissible, or invalidated, the court shall confiscate the bail and impose a fine on the applicant ranging from KD 500 to KD 1,000, multiplied by the number of judges requested to be recused.

4. Prohibition of submitting a repeated request to recuse the same judge in the original case.

5. To ensure the speedy resolution of pending recusal requests, the draft law obliges the president of the court or their representative to designate the circuit that will consider the recusal request, set a date for its urgent hearing, and issue a ruling within one month from that date.

6. The effect of submitting a recusal request on the original case has been amended. The submission of the first recusal request results in the suspension of the original case. However, the submission of any subsequent recusal requests, whether by the first requesting party or other parties in the original case, does not suspend the case unless the court considering the new recusal request decides to suspend it based on a party’s request.

7. The draft addresses practical issues related to recusing the court appointed by the president to consider a recusal request. It stipulates that such a recusal request does not automatically halt the consideration of the case. To address this, the draft allows the court-appointed to consider the recusal request to order the suspension of the recusal consideration if deemed necessary, based on a request from one of the parties.

8. The current guarantee amounts stipulated in the existing law are no longer sufficient to ensure seriousness due to their low value. Therefore, it was decided to raise the guarantee amounts specified in Articles 137, Paragraph Two, 150, Paragraph Two, 159, Paragraph Three, 187, Paragraph Three, and 211, Paragraph Two of the same law. These guarantees relate to appeals or petitions, lawsuits to object to judgments issued by a non-disputing party, annulment of arbitrators’ awards, and temporary issues, as stipulated in Article 2 of the present draft decree-law.

9. The value of compensation claims arising from civil liability filed against air carriers shall be estimated in Special Drawing Rights (SDR) units, equivalent to their value in Kuwaiti dinars according to the valuation adopted by the International Monetary Fund on the day the claim is filed. This estimation does not include any changes in the value of the units occurring after the claim is filed.