Yes, Kuwaiti law provides a class action mechanism, although it lacks unified regulation. The Code of Civil and Commercial Procedure law (Decree Law no. 38/1980) sets the general provisions of litigation, including rules for various procedural matters such as the service of process, the jurisdiction, filing and examining the cases and the enforcement of orders and judgments.

According to article 2 of the said law, any individual or legal entity who does have an existing interest may initiate a lawsuit thereto. Under such provision, a group of individuals who have the same interest by facing a similar or identical situation and who are sustaining the same damage, caused by the same defendant, have the right to collectively sue this defendant. Also, nothing in the law deprives the claimants from initiating class actions against a group of identified defendants.

On the other hand, Article 87 of the law outlines a mechanism akin to class actions called “Intervention.” It allows to any interested physical person or legal entity to join a litigant or seek judgment on a relevant matter. Interventions can occur via standard case filing procedures before the hearing or by oral request during the hearing.

In addition to the mentioned above, law recognizes some types of class actions as follows:

Collective Employment Disputes:

A specific regulation of class actions was first introduced in Kuwait by virtue of the Employment law (law no. 6/2010) which granted trade unions registered in Kuwait the right to initiate class actions pertaining to a group of identified/not identified workers relation to the employment relationships against employers.

Collective Protection Consumer Disputes:

By introducing law no. 39/2014 on consumer protection, the class actions expanded to consumer rights and producers’ obligations, where the class action can be brought by association for causes described by the law.

Competition Protection Class Actions Disputes:

Class actions may be brought in competition protection matters, taking into the account that the Law no. 72/2020 on the Protection of Competition has established the Competition Protection Agency having the juristic personality that aims to protect free competition and to prevent monopolistic practices of all kinds. The chairman of the Agency represents it before courts and third parties, and he shall have the competency of requesting the filing of a criminal offence lawsuit or any proceedings thereof. Although, the law does not allow the Agency to represent a group of claimants in a civil lawsuit requesting damages, however, any individual or a group of claimants may intervene in the case for interim injunctions or requesting damages.

Nothing in the law restricts the right of associations representing a group of companies to bring a class action in competition protection matters, provided that they can prove their representativeness. The evidence for such requirement may be fulfilled by a simple power of attorney issued by a group of companies suffering from the harmful act violating the regulation of competition protection supervised by the Agency.

When the agency issues a disciplinary decision against an offender, the appeal filed by such offender against the Agency to annul its decision. In such a case, the Agency is considered a representative of all the victim parties that the decision is issued in their favour whether they can be identified or not and they can join the case latter under the rules of intervention.

Civil Liability and Compensation for Environmental Damages:

Class actions may be brought under the Environment Protection Law no. 42/2014. Book 8 of the law regulates the provisions of civil liability and compensation for environmental damages. The article 161 of the law states that “Nothing in this law may prevent any physical or legal person to claim whoever is liable for pollution for compensation for the damages incurred by him as a result of such pollution, whether with or without any contractual relationship”.

Civil liability for the pollution shall compensate for the damages incurred by natural resources, any damages affecting the environment or limiting its beneficial use, costs of cleansing, pollution removal or reduction, and environment rehabilitation and public utilities obstruction costs.

Therefore, the law impliedly allows multiple persons to claim for the same damage. It also does not restrict the right of civil associations to claim environmental damages, even the number of claimants cannot be identified if such civil associations can prove their interest in the claim.

Also, whoever is threatened by the risk of pollution may ask the court to order the owner of the facility with the hazardous activity or the owner of the waste site to submit a report or data about the materials he produces or deals with.

In contrast to the general provisions of litigation and disputes set out by the law of civil and commercial procedures law, the environment protection law allows the initiation of the action against non-residents before the Kuwaiti courts. Article 164 of the law states that “Whoever occupies a place for residence, or other purposes shall be liable for any compensation to the affected party and for the damage incurred by him due to noise, odours or others”.

Under the previous provisions, class actions for damages in competition protection matters can be brought by any group of individuals against non-resident defendant.

In the matters organized by specific laws, class actions can only be brought by the approved legal entities permitted by such laws. Approval criteria vary depending on the type of class action.

For example, Consumer Protection law (Law no. 39/2014) expressly permits the NGO’s organizations and associations established for the purposes of defending the interests of consumer, to initiate or intervene in the lawsuits related to consumer’s interests. The Implementing Regulation of the Law set forth the conditions and procedures governing the establishment of such associations and the controls of conducting their activities in coordination with the competent authorities.

As for the class actions related to employment matters, only the registered trade unions whose board of directors are elected can bring the case on behalf of their group members.

In other matters not governed by specific laws, a class action can be brought by any group of individuals in a one lawsuit. Notwithstanding, in such cases, the lawsuit shall be filed by all the identified number of individuals in question, unless they authorize one of them or a third party to represent in the case. Although the action, in that form, is not deemed a full form class action according to the same regime of Common Law countries, it can achieve the main goals of class action, especially in cases where the individuals can be identified.

There is no specific jurisdiction for class actions in Kuwait. In general, the code of Civil and Commercial Procedure’s Article 23 establishes jurisdiction based on the defendant’s domicile. If the defendant resides in Kuwait, the Kuwaiti courts shall have the jurisdiction over the action, but all except real estate lawsuits related to immovable properties located abroad.

According to article 24 of the said law, the Kuwaiti courts shall also have the jurisdiction to hear the lawsuits filed against a non-Kuwaiti domiciled or residing in Kuwait, in the following circumstances:

1. If he has chosen domicile in Kuwait.
2. If the lawsuit is related to immovable or movable properties found in Kuwait, to an obligation arising of fulfilled or to be fulfilled therein, or to bankruptcy declared therein.
3. If either litigant is of a Kuwaiti national or a non- Kuwaiti domiciled, residing or having a chosen domicile in Kuwait. According to such provision, a class action may be brought against non-Kuwaiti legal entity exercising the commerce in Kuwait through a commercial agent as the law recognize the domicile of the commercial agent as the same of foreign entity.

Moreover, the Kuwaiti courts shall have jurisdiction over the lawsuit, even it does not fall within their jurisdiction in compliance with the preceding provisions if the litigant expressly or implicitly accepts their jurisdiction. Pursuant to such provision, if a class a action is brought before the Kuwaiti court against an international defendant, who does not have a domicile in Kuwait, but attended the hearing and argued in the merits, without challenging the jurisdiction of Kuwaiti courts.

All the provisions stated above shall apply, without prejudice to the rules of competences based on the merits. For example, administrative class actions filed in the occasion of damages caused by illegal administrative decisions shall fall within the jurisdiction of the Kuwaiti administrative court. Also, certain court specialize in consumer protection, employment, and bankruptcy matters.

The conduct and causes of action depend on the type of the class action. For example, in consumer protection matters, class actions can be based on products liability in connection with health and safety of consumers, the quality of commodities or service they and obtaining correct information and data concerning the products and services they use. An investigation should be conducted by the National Committee for Consumer Protection followed by a decision to prove the supplier’s breach. After that, class actions may be brought claiming the damages.

Yes, there are limitations that vary depending on the type of class actions, based on criteria like claimants, conduct, and remedies. In collective employment disputes class actions can only be brought by trade unions. In contrast for consumer protection law, class actions can be brought by a group of individual consumers or by associations provided that such associations to be registered in Kuwait according to the regulation set by consumer protection law. In matters of environmental incidents, damages can be claimed by a group of individuals suffered by prejudice.

The absence of a comprehensive class action framework has limited the number filed. However, it is well noted that class actions are frequently brought by trade unions in oil and petrochemicals sectors.

Currently, emerging business risks include:

• Employment rights particularly those related in the oil and petrochemical industries.
• Healthcare litigation related to consumer protection (e.g., safety).
• Automotive, digital, and food and beverages sectors.
• unfair practices, and product liability.

Kuwait jurisdiction cannot be classified as fully opt-in or opt-out. Consumers have the option to join once notified.

All procedures formalities required by the Civil and Commercial Procedural law shall apply, unless required other formalities in other specific law. As such some types of class actions requires specific procedural formalities.

For example, certain formalities are required to bring the class action to court in the collective employment disputes such as the recourse to the mandatory direct negotiation between the employees and the employer and submitting a settlement request before the mediation committee without reach out a settlement.

If the disputing matter is related to competition protection regulation, the class action will not be admissible, otherwise a final court decision on the contravention or the offence to be issued, since the law classifies the infringement on competition protection as contraventions and offences and outlined a specific formality for receiving and studying the complaints thereto.

Remedies depend on the type of class action. it can be compensation for material and moral damages in the consumer matters and it can also be stopping or prohibiting harmful practices if the case is related to injunctive measures.

No, punitive damages are not permitted under Kuwaiti law, which is based on compensatory principles and Islamic Law Sharia that prohibit the punitive damages. Damages are limited to restitution for direct damage and lost profits.

According to the established principles of the Kuwaiti Court of Cassation, the calculation of damages shall be based on the documents submitted in the claim and matching the losses and the lost profit affirmed by such documents.

Class actions are heard by a judge or higher courts upon appeal. There is no jury system in Kuwait’s judicial regime.

Damages are awarded on a case-by-case basis based on each group member’s loss. According to article 300 of the Civil Code (Decree Law no. 67/1980) the court shall follow the measure of damages fixed in the contract or by a provision in a specific law. If neither specific contract nor law outlines the measure of damages, the court will assess the damages having its discretionary power restricted with the findings approved upon the submitted documents in the dispute, without prejudice to the compensatory rules and mandatory provisions set by law.

Pursuant to the Civil Law and according to the Kuwaiti Court of Cassation precedents, the rules of measure of the material damages that must be followed by the court can be summarized in the following:

1. The amount of damages shall include losses suffered by the claimant and profits of which he has been deprived, provided they are the normal result of the failure to perform the obligation or of delay in its performance.
2. The damage shall be considered as a normal result if the claimant is not able to avoid it by making a reasonable effort. However, if the source of obligation is the contract, the debtor who has not been guilty of fraud or serious fault will not be held liable for damages greater than those which could have normally been foreseen at the time of entering the contract.

In connection with determining the amount of material damages Courts in Kuwait usually rely on expert assessments and evidence provided during the trial.

It is worthy noting that damages should include compensation for moral prejudice of individuals. Other legal entities are not entitled to moral prejudice according to the established principles of the Kuwaiti Court of Cassation. According to that jurisprudence, the reparation for an illicit act shall also include moral damage. The moral damage shall namely include the tangible or emotional harm, suffered by a person as a result of trespassing on his life, body, freedom, integrity, honour, reputation, social or moral position or his financial standing. The moral damage also includes the sorrow and sadness felt by a person as well as the loss of affection and love as a result of the death of a dearly beloved one. Moral damages resulting from death may not, however, be awarded except in the case of spouses and relatives to the second degree of kinship. The right to compensation for moral damages is not assignable unless its amount is determined by law, agreement or if the creditor has lodged a claim in court.

There are no obstacles, but procedural rules must be followed to avoid claim inadmissibility. Associations must prove representativeness and follow jurisdictional guidelines.

According to the Civil and Commercial Procedural Law, no limits on the nationality or domicile of claimants in class actions or collective redress proceedings. Anyone meeting the group criteria can join, regardless of nationality or residence.

Some specific types of class actions and collective redress proceedings may require the claimants to be of the Kuwaiti national or having its domicile in Kuwait. For example, in both employment collective disputes and consumer protection matters, class actions or collective redress can only be brought by associations registered in Kuwait. As for the employment collective disputes, the class actions must be brought by a trade union, that is required to have all its members of Kuwaiti nationality.

Yes, International laws may impact class actions or collective redress proceedings should they are related to international relationships that entail international disputes. As the state of Kuwait is a member of various international conventions, the rules of such conventions shall supersede the national law. For example, in formalities, the rules of the Hague convention on service the judicial documents abroad shall apply in serving prosses if the defendant resides out of Kuwait. In the substantial matters, the international conventions related to the merits of the dispute shall apply. (e.g.: GCC Economic Convention).

General settlement rules for civil claims apply. Litigants may request the court to record their agreements, making them legally binding once signed by the parties or their attorneys. Settlement agreements require court certification to prevent agreements contrary to law or third-party rights.

In some laws related to specific matters, the collective settlement is regulated. For example, the Employment law’s article 124 states that “In the event of collective disputes, both parties shall have recourse to the direct negotiations between the employer or his representative and the workers or their representative. The competent Ministry may delegate a representative thereof to attend these negotiations as a controller.  Should they reach an agreement among them, this agreement shall be registered at the competent Ministry within 15 days according to the rules issued by a ministerial decision.

Article 125 of the said law provides that either party to the dispute may – should the direct negotiations fail to reach a settlement – submit to the competent Ministry an application to settle the dispute amicably through the Collective Labour Disputes Reconciliation Committee established by virtue of a ministerial decision. The application shall be signed by the employer, his authorized agent, the majority of the disputing workers or their authorized representative.

Also, the competent Ministry may, in the event of a collective dispute and when necessary, interfere without a request from any of the disputing parties to settle the dispute amicably. Said Authority may also refer the dispute to the Reconciliation Committee or Arbitration Authority, as it may deem appropriate. The disputing parties shall, in this case, submit all the documents requested by the competent Ministry and they shall attend whenever requested to be present.

Due to the current lack of specific regulations, the general rule for settling individual claims applies. Therefore, the settlement agreement should be filed with the court to receive approval. Generally, the court will certify the settlement agreement, unless it is contrary to the public policy or affects the rights of third parties.

Class actions can interact with regulatory enforcement findings, if the law requires an investigation by a regulator in specific matters. If a regulator, in such a case, investigates the matter and rendered a decision thereon, its findings and grounds can be used by the claimants in the class action as a basis to the breach that they are alleging. For example, in some circumstances determined by the Consumer Protection Law.

In another example for interaction, If the class action is related to competition protection matter, it will not be admissible, otherwise a final court decision on the contravention or the offence to be issued.

ESG-related claims have not yet been brought, in despite of the possibility of its initiating under the provisions of Environment Protection Law.

Yes, Third-party funding is permissible, particularly by entities like insurance companies. However, Kuwait lacks specific legislation or regulations on this funding. The general rules of contract law regulated by the Civil Law shall apply.

Yes, the contingency fee arrangements are permissible since the Advocacy Law, according to what established by the cassation court, restricts only the arrangements of the lawyers’ fee when the payment made in the form of an in-kind share (real property or other property rather than in cash).

In the appeal of cassation no. 982/2015 Civ. Chamber, the court stated that the relationship between the lawyer and the client, in origin, subject to the general rules of agency stated in the Civil Law, unless stated otherwise in any other specific law. The court added that the legislator limited the prohibition in determining it by an in-kind share of the disputed rights and thus determining a percentage rather than an in-kind share of the total value of damages is not prohibited.

Based on that, the contingency fee arrangements for the funding of class actions or collective proceedings are permissible considering that: A) the Advocacy law does not prohibit the lawyers to receive a fee only if the case is won. B) the nature of class actions or collective proceedings, that is related to damages, require fee arrangements determined in cash.

Yes, according to article 119 of the Civil and Commercial Procedure law, when rendering the judgment that ends the litigation, the court shall decide on the lawsuit expenses Sua sponte. These shall be adjudicated– including the attorneys’ fees- to be deducted from the convicted party in the case. If there are several convicted parties, the expenses shall be distributed among them in proportion to the interest of each in the lawsuit at the court’s discretion. They shall not be jointly bound to bear the expenses unless they are jointly bound by their original obligation subject of the adjudication. The intervention expenses shall be borne by the intervener if he has been made independent requests and his intervention has been ruled unaccepted or his requests rejected.

No immediate reforms are expected, though the legal framework is evolving. Frequent changes to application and interpretation should be anticipated.