As the outbreak of COVID-19 is continually impacting businesses across the globe, we would like to share with you some of the legal challenges that our clients may face, and provide insights on how to navigate these challenges, and mitigate the inherent legal and commercial risks.
Situation in Kuwait
In efforts to contain the Covid-19 outbreak in Kuwait, the Kuwaiti government promptly applied a number of measures Including the implementation of a government shutdown, which is scheduled to end on April 12, 2020*, which has rendered all government filing and procedures suspending until the shutdown is over. In addition, a partial curfew every day from 5pm – 4am* was also implemented, and malls, cafes, restaurants, and the vast majority of shops have also been closed*. (*this information is accurate at of the time of this alert, but may be subject to change in the future).
Given the measures implemented in Kuwait, as well as other countries affected by the Covid-19 pandemic, businesses are now concerned about their non-performance under ongoing contracts. A ‘force majeure’ event is an extraordinary, unforeseeable and unavoidable event that prevents one or both parties to a contract from performing their obligations thereunder.
When the person establishes that the damage was due to a cause beyond his control, such as force majeure, unforeseen circumstances, act of the prejudiced or act of another, he shall not be liable to compensate, unless otherwise provided by law.
In order to benefit from this legal concept, it is important to determine the key issues, as follows:
• How has the Covid-19 situation impacted the affected party’s performance under the contract?
• Has the affected party taken any steps to mitigate the implications of this force majeure event?
• Is there another way for the affect party to fulfil their obligations under the contract?
• Is there a force majeure clause in the contract? Does it apply to pandemics? Is there a requirement to notify the other party?
Article 233 of the Kuwaiti Civil Law Provides Amendment to the civil and commercial procedures law – and how this impacts litigation in Kuwait. The Kuwaiti Civil and Commercial Procedures Law was amended by Law No. 5/2020 which states that: “The period of suspension is not counted within the procedural dates stipulated in this law, the Law of Procedures and Criminal Trials and the Law of the Cassation Court and its Procedures, provided that its calculation resumes from the day appointed by the Council of Ministers to return to work”. This will allow litigators to commence their ongoing lawsuits without the worry of dropping the case for the reason of time limitations. How notices may be served if the recipient’s office is closed due to Covid-19 If the offices are “partially open” a notice can be physically delivered byYFLGparalegals (preferably by two paralegals; in case the company refused to accept the notice, the paralegals would be witnesses). If the offices are closed and the subject agreement refers to emails as a reliable way of notices, then emails would be reliable as per Law no. 20/2014 (Electronic Transactions Law). In case the contract does not include such clause, the contract may be amended accordingly in a new addendum to the contract.
We’re here to help
While our first and foremost concern is the safety of our team, our clients and our community, we remain committed and prepared to assist our clients during these challenging times. The YFLG team is ensuring our best resources are put forward to avoid disruptions to the legal support provided to our clients. Our team is closely monitoring the rapidly-changing dynamics brought about by these circumstances, and will keep you posted on how to best manage these situations. Please do not hesitate to contact us if you would like to discuss any legal challenges with us. In the interest of maintaining social distancing, we have made accommodations for clients to schedule phone conferences in place of in person meetings, and exchange documents via email. Please contact us on the following: Telephone: +965 222 50 210 | +965 222 50 211 T: +965 222 50 210 | +965 222 50 211 E: Info@alyaqoutlg.com