The Middle Eastern Conception of Civil Procedure: The Translation of the Principle of Concentration and Sustainable Diversity in Law

• Pages: 271-299
• Date: 01 October 2024
• Published date: 01 October 2024
• Author: Muhamad Alkhudhair,Norah Al-Shatti
• Subject Matter: Derecho Internacional

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2021 e Institute for Migrant Rights Press

thE MiddlE EastErn ConCEption of

Civil proCEdurE:

A TrAnslATion of The PrinciPle of concenTrATion

And susTAinAble diversiTy in lAw

Ahmad A. Al-Khudhair & Norah Y. Al-Shatti

Kuwait University College of Law

E-mail: ahmad.alkhudhair@ku.edu.kw

In this paper, we argue that Middle Eastern civil procedure is a form of “legal transla-

tion.” is theory of legal change is premised on the assumption that the meaning of the

law changes as it migrates from one context to another. To exemplify this point, we focus

on the change of meaning behind the principle of concentration of means of defense in

civil litigation procedures, or “the principle of concentration.” e principle of concen-

tration constitutes a fundamental tenet of civil procedural law, aimed at optimizing the

judicial process and facilitating the prompt resolution of disputes. e application of the

principle in the Middle Eastern context diverges from French understanding of the prin-

ciple, which requires the early disclosure of all defenses to enhance procedural eciency.

In contrast, Kuwaiti law permits litigants to alter the legal characterization of claims,

potentially compromising the pursuit of procedural eciency. For what it is worth, Ku-

wait’s interpretation of the principle also mandates parties involved in civil litigation to

present all relevant evidence and arguments within specied time constraints or stages of

court proceedings, a gesture towards attaining procedural eciency. us, Kuwait’s ad-

aptation of the principle of concentration fosters a phenomenon of sustainable diversity

in law. Kuwait’s adaptation reects the interplay between local legal traditions and im-

ported legal concepts, ultimately shaping a unique procedural landscape that inuences

judicial outcomes across the region.

Keywords: Comparative Procedural Law, Middle Eastern Law, Legal Pluralism, Ku-

wait, Legal Transplant.

XI Indonesian Journal of Inter nat ional & C omparative Law 271-99 (October 2024)

272

Al-Khudhair & Al-Shatti

I. PRELIMINARIES

A. Arguments

is paper argues that civil procedural law undergoes a process of “lo-

calization,”1 which, in this context, refers to the phenomenon whereby

the original meanings of embedded concepts are supplanted by local

interpretations that align more closely with the prevailing preferences

of the adoptive legal system or order.2 It comes as no surprise, therefore,

as a commentator has conrmed, that “these [Middle Eastern commer-

cial] courts are clothing themselves in local labels, akin to T.E. Law-

rence (also known as Lawrence of Arabia), this ‘Law of Arabia’ has gone

unnoticed.”3 is phenomenon fosters and sustains what is termed as

“sustainable diversity in law.”4 Consequently, it highlights the inevita-

bility of internal diversity within a specic legal tradition. Furthermore,

similarly to substantive law, procedural law, despite its ostensibly for-

malistic nature, is not devoid of cultural or ideological inuences, “of-

ten reect[ing] society’s fundamental values and sensitivities.”5 As two

leading scholars in the eld succinctly put it, “[t]he dispute processes,

1. We adapte d the term “localization,” hinting at the agency of the receiving

agent, from Tine Destrooper, O n Travel, Translation, and Transformation,

in H R T  P 1, 3 (Tine Destrooper &

Sally Engle Merry eds., 2018).

2. In the scholarship on human rights law, localization is termed as

“vernacularization.” See e.g., Peggy Levitt & Sally Merry, Vernacularization on

the Ground: Local Uses of Global Women’s Rights in Peru, China, India and the

United States, 9 G N 441 (2009); Sa lly Engle Merry & Peggy

Levitt, e Vernacular ization of Women’s Human Rights, in H R

F 213 (Stephen Hopgood, Jack Snyder, & Leslie Vinjamuri eds., 2017).

3. See Andrew Dahdal, Navigating Judicial Conict amidst Juris dictional

Expansion: Common Law Commercial Courts in Arab Civil Law Countries, 11

C J. C. L. 1, 2 (2023).

4. See H. Patrick Glenn, Sustainable Diversity in Law, in L P 

D: S  P  D 95 (Brian Z.

Tamanaha, Caroline Sage, & Michael Woolcock eds., 2012).

5. Guy I. Seidman, e New Comparative Civil Procedure, in T D 

C P: G T  D 19, 24 (Colin B.

Picker & Guy I. Seidman eds., 2016).