The Difference Between Arbitration and the Judiciary

Achieving justice and resolving disputes are among the most important pillars of social and economic stability in the State of Kuwait. The judiciary holds general jurisdiction to adjudicate disputes, while arbitration serves as an alternative mechanism based on the parties’ will, whether voluntary under the Code of Civil Procedure or judicial under Law No. 11 of 1995. Through this article, I aim to highlight the key differences between the two systems.

First, the judiciary relies on judges appointed by the State in accordance with the law, and the parties have no right to choose them. In contrast, voluntary arbitration allows the parties to select arbitrators and define their expertise. Judicial arbitration, on the other hand, is composed of three judges at the counselor rank, in addition to arbitrators chosen by the parties.

Second, court hearings are generally public to ensure transparency, whereas arbitration is confidential to protect the parties’ interests and the privacy of the disputes.

Third, the judiciary is bound by specific legal procedures that may take longer, while arbitration is characterized by flexibility, expedited resolution, and the ability of the parties to agree on procedures and timelines.

Fourth, judicial rulings are subject to appeal and cassation in accordance with the law. As a general rule, arbitral awards are not subject to appeal, and challenges to them are usually limited to actions for annulment. However, judicial arbitral awards may be appealed before the Court of Cassation in the cases specified by law.

Fifth, judicial rulings acquire enforceable force once they become final. Arbitral awards, by contrast, generally require an enforcement order from the competent court, except for judicial arbitral awards.

In conclusion, the judiciary and arbitration in Kuwait are complementary. The judiciary safeguards public order and ensures the rule of law, while arbitration provides a specialized and swift means of resolving disputes. This enhances confidence in the legal environment, supports investment, protects rights, and contributes to economic stability and justice among all litigants, effectively and balanced across all legal fields.

Hussein Yaqoub Dashti

College of Business Studies