A Way Forward for Kuwait's Commercial Law Reform: A Theory of the General Commitment of Kuwait Law?

• Author: Abdulwahab Abdullatif Sadeq/Ali Buabbas
• Position: Kuwait University College of Law/Kuwait University College of Law
• Pages: 247-268

e Indonesian Journal of International & Comparative Law

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

http://www.ijil.org

© 2024 e Institute for Migrant Rights Press

a Way forWard for KuWait’s

CoMMErCial laW rEforM

a TheoRy of The GeneRal CommITmenT of KuwaITI

law?

Abdulwahab Abdullatif Sadeq

Kuwait University College of Law

E-mail: abdulwahab.sadeq@gmail.com

Ali Buabbas

Kuwait University College of Law

In this article, we articulate what might be called as Kuwait's general

commitment to (commercial) law. is refers to a set of commitments

that are distinct from the liberal law's general commitment, identied

by its insistence on the imperative of “a regime of law that helps to se-

cure liberty.” In contrast, the Kuwait case demonstrates that law can have

“non-instrumental” value; that is, something that cannot easily be trans-

lated as promoting liberty or liberal ideals. is means what serves as the

controlling commitment of the Kuwaiti commercial legal practice is the

assumption that law can contain expectations which are dierent from

what one normally nds in a liberal setting. By articulating the distinc-

tiveness of Kuwait's general commitment to law, it can be argued that

Kuwait's eort to reform its commercial law as a form of liberalization

without commitment to liberalism. In eect, we conclude that a set of

dierent approaches is justied should the reform be pursued more com-

prehensively.

Keywords: commercial law, economic liberalization, law reform, Kuwait, Islamic

law, legal theory.

XI Indonesian Journal of International & Comparative Law 249-69 (Ju;y 2024)

248

Sadeq & Buabbas

INTRODUCTION

In December 2023, the Kuwait National Assembly amended the public

tender law to abolish the local agent requirement for public tenders. It

also expanded its acceptance of foreign investment by reforming the

commercial law to allow foreign companies to open branch oces in

Kuwait without a local agent.1 is reform follows the foreign direct

investment law adopted in 2013.2 e amended law allows up to 100

percent foreign ownership of a business, for entities approved by the

Kuwait Direct Investment Promotion Authority (KDIPA). is means

that overseas enterprises can now establish a presence and operate in

Kuwait by opening a wholly owned branch in addition to the existing

options of establishing a company with majority Kuwaiti stakeholders

or appointment of a local agent. Furthermore, foreign companies may

now participate in government tenders directly and, if successful, may

implement the contract through their own branch in Kuwait. e Na-

tional Assembly enacted this reform to encourage foreign companies

to establish branches in Kuwait, in the hope that increased competition

will expand the availability of higher quality and competitively priced

products.

One reason prompting Kuwait’s decision to reform t its commercial

law is life aer oil, “the commodity which mediates the Gulf’s

integration into the world economy.”3 e same plan has also animated

many other Middle East countries. As the latest country to join the

wagon, Saudi Arabia is arguably the most ambitious, with privatization

1. Law no. 1 of 2024, (2024). See also New Law Issued in Kuwait Allowing

Foreign Companies to Open Branch Oces in Kuwait without a Local

Agent, L ( Jan. 24, 2024), https://www.lexology.com/library/detail.

aspx?g=5a9046c4-06e8-4660-a9f9-848b98c717ad (last visited Nov 19, 2024);

Kuwait: Commercial Agency Law Amendments Proposed, A N, Feb.

22, 2022, https://www.lexismiddleeast.com/news/2022-02-24_17 (last visited

Nov 19, 2024).

2. Decree Law No. 116 for 2013, (2013). See also Kuwait Enacts the Direct

Investment Promotion Law, UNCTAD: I P H

(2013), https://investmentpolicy.unctad.org/investment-policy-monitor/

measures/2424/kuwait-enacts-the-direct-investment-promotion-law- (last

visited Nov 19, 2024).

3. J C, O  P   G: R  M 

K  Q 4 (1990).