One of the most important features of the new Capital Markets Law is the establishment of a Stock Market Court and this is dealt with in the law by Articles 108 to 117. This court has been created as a special tribunal independent from the mainstream Kuwait judicial system, being carved out of the Court of Cassation.
Its remit is to adjudicate on cases over which it has jurisdiction (non-disclosure of holdings, insider trading, abuse of minority rights and broker regulatory infringements, for example), with those cases being divided into two categories, penal (disciplinary) and non-penal (commercial, civil and administrative). There is also a role for the new court in assisting in the implementation of cases referred from the mainstream courts, presumably relating to such matters as the attachment or freezing of portfolios of shares traded on the exchange.
There is a right of appeal, in both penal and non-penal cases, under Article 112 from the decisions of the Stock Market Court to the Kuwait Court of Appeal whose decision is final and not appealable thereafter.
Once more, therefore, a special court has been welded onto the Kuwait judicial system to address a pressing judicial need; the first instance of this was the special court developed out of the Court of Appeal under the Financial Stability Law of 2009. The desire in setting up both courts was clearly to avoid specialist proceedings being referred to the mainstream courts, where cases can often become protracted and bogged down on technical matters or by reference to the Panel of Experts. This is entirely laudable.
However, there have been fairly vociferous calls from the constitutionalist lobby and others for a means to be established in the FSL Court by which objections from creditors to the automatic stay may be heard on appeal – there is none provided at present. And similarly, given the extent and gravity of the sanctions that may be ordered by the Stock Market Court (under Articles 118-129) for a wide range of offences, a similar call must be anticipated from the same quarter for the right of appeal to be extended beyond the Court of Appeal.
Anthony J Coleby