A commercial claim in Kuwait is usually won or lost on its paper. The court looks at what the contract says, what the invoices and delivery notes show, what the parties wrote to each other and whether each document can be relied on in the form it is filed. Two laws of 1980 set the ground rules. The Civil and Commercial Procedure Law, Decree-Law 38 of 1980, governs how a claim is filed and heard. The Law of Evidence in Civil and Commercial Matters, Decree-Law 39 of 1980, governs what proves a fact. This article sets out how our Kuwait office prepares documents for a commercial dispute, including electronic records and documents that come from abroad.
The legal framework: procedure, evidence and electronic records
Clients often assume that the Procedure Law holds the evidence rules, but the rules on proof are in the separate Evidence Law, Decree-Law 39 of 1980. The Procedure Law decides where and how the claim is started, how it is served and how hearings run. The Evidence Law decides who must prove what, how documents, witnesses, experts and oaths are used, and how a document is challenged.
Two further sources matter in a commercial case. The Commercial Code, Decree-Law 68 of 1980, regulates the commercial books of a merchant and, for commercial contracts, allows proof by all means in many situations. The Electronic Transactions Law, Law 20 of 2014, gives electronic records and signatures the same legal effect as written ones.
Burden of proof and relevance under Articles 1 and 2 of the Evidence Law
Article 1 of the Evidence Law places the burden on the party who asserts a right: the creditor must prove the obligation, and the debtor must prove that it was discharged. In a payment claim this means the claimant must show the contract, the performance and the amount due, and the defendant must show payment, set-off or another discharge.
Article 2 adds that the facts to be proved must be relevant to the action, material to its outcome and admissible. This is a practical filter. Documents that do not touch a disputed fact add length and give the other side room to argue. A tight bundle, organized by issue and indexed, helps the judge and any appointed expert see the point quickly.
Official documents and their copies, Articles 8 to 12
Article 8 defines an official document as one in which a public official, or a person charged with a public service, records what he did or received from the persons concerned, following the legal formalities and within his competence. If a document does not meet the formalities, it has only the value of a private document, provided the persons concerned have signed it. Article 9 makes an official document conclusive evidence against everyone for the matters the official recorded as done by him or as taking place in his presence, unless forgery is proved by the legal means.
Articles 10 and 11 deal with copies. An official copy, handwritten or photographic, is conclusive to the extent that it matches the original, and the copy is presumed to match unless a party disputes it, in which case it is checked against the original. Where the original no longer exists, an original official copy keeps the evidential force of the original if it does not look doubtful. Under Article 12 the judge assesses the weight of certificates and extracts taken from official documents. Certified copies of official documents should therefore be ordered early.
Private documents: signatures, dates and denial, Articles 13 to 16 and 27 to 31
Article 13 provides that a private document is treated as issued by the person who signed it unless he expressly denies the handwriting, signature, seal or fingerprint attributed to him. An heir or successor need only swear that he does not know that the mark belongs to the person from whom he took the right. A signed contract, purchase order or acknowledgment of debt therefore has real force, and a denial must be made expressly.
Article 14 limits the effect of a private document on third parties as to its date. The date is certain only from the day the document is entered in the dedicated register, from the day a competent public official endorses it, or from the death of a signatory, among other events. Article 16 gives signed letters the value of a private document. Under Article 27 a challenge of forgery can be made against official and private documents, while a denial of handwriting or signature can be made only against private ones. The person who alleges forgery carries the burden of proof. A denial that fails is fined under Article 31, as replaced by Law 107 of 2013, and a failed forgery challenge is fined under Article 36.
Commercial books, correspondence and annotations, Articles 17 to 21
Article 17 states that a merchant's books are not evidence against a non-merchant, but entries about goods the merchant supplied can justify the judge in administering the supplementary oath to either party. Mandatory commercial books are evidence against their owner whether or not they were regularly kept. Under Article 18, regularly kept mandatory books are evidence for their owner against another merchant when the dispute concerns a commercial act, and the other side may rebut this, including from its own regularly kept books.
Article 19 permits an oath on the validity of his claim to be administered to a merchant who relied on the other merchant's books and accepted their content in advance, if the other merchant then refuses without justification to produce those books. Article 21 gives weight to a creditor's annotation of discharge on the debt instrument, even without a signature, in the stated cases. Regularly kept books can help in a claim against another merchant and can also be used against the client.
Witnesses and the limits on oral proof, Articles 39 to 41
Article 39 restricts oral proof in non-commercial matters. If the legal act exceeds five thousand dinars or has an undetermined value, witness testimony cannot prove its existence or extinction unless the parties agreed otherwise or another provision allows it. The restriction is written for non-commercial matters, so in a commercial dispute the court has more room to hear witnesses on the dealings between traders. Documents remain the safer route.
Article 40 bars oral proof of what contradicts or goes beyond a written document and of the balance of a right that can only be proved in writing. Article 41 permits it where there is a commencement of proof in writing, meaning any writing from the opponent that makes the alleged act probable, or where a material or moral impediment prevented obtaining a document. Emails and delivery receipts often serve as that starting writing.
Compelling the other side to produce a document, Articles 22 to 25
Under Article 22 a litigant can ask the court to compel the opponent to produce a document material to the action that the opponent holds, in the cases the article lists. These include a document the law allows to be demanded, a document common to both litigants, and a document the opponent relied on in the case. Article 23 provides that if the applicant proves the request, the court orders production, and if not, the opponent takes an oath that the document does not exist or that he does not know where it is.
Article 24 lets the court allow a third party to be joined to produce a document, and lets it order an administrative authority to supply information and documents it holds. Article 25 prevents a litigant from withdrawing a document he has filed without the consent of the opponent or the written permission of the judge. A document should be reviewed before it is filed, because withdrawal is restricted.
Electronic evidence under Law 20 of 2014
Article 3 of the Electronic Transactions Law gives electronic records, documents, messages, transactions and signatures the same legal effect as written ones in civil, commercial and administrative dealings, both in binding the parties and as proof, when they are made under that law. Article 6 treats the hard copy of an electronic document as evidence against all, in the case of an official document, and as evidence against the person who signed an unofficial document electronically, to the extent it matches the original.
Article 7 sends questions of authentication back to the Evidence Law, to the extent the Electronic Transactions Law and its by-law do not deal with them. Article 14 says an electronic record kept for evidence is binding on the parties unless another law requires a written proof, and Articles 18 and 19 recognize a protected electronic signature that identifies the signatory and is linked only to him. Clients should keep native files, export emails with headers and keep the signature certificate.
Foreign documents: legalization, Arabic translation and the Apostille question
A commercial dispute often depends on documents made abroad, such as a parent company resolution, a foreign power of attorney or a certificate of incorporation. We checked the list of states that are party to the 1961 Hague Apostille Convention, and Kuwait does not appear on it, while Bahrain and Oman do. A single apostille from the country of origin therefore does not serve for a Kuwait court, and the usual route is a chain: notarization or issuing-authority attestation in the country of origin, attestation by its foreign ministry, legalization by the Kuwait embassy there, and then attestation by the Ministry of Foreign Affairs in Kuwait.
All documents filed in a Kuwait court must be in Arabic, and the court may require an official translation. We therefore plan the chain and the translation together, and we start early because the steps run in sequence and each one checks the previous stamp. Requirements vary with the document type and the country of origin, so our Kuwait office confirms them with the embassy and the ministry first, and re-checks the Apostille list because accessions change.
Filing and e-services at the Ministry of Justice
A claim in Kuwait is started by filing a statement of claim with supporting documents at the clerk of the competent court. The clerk keeps a copy and sends the original for service on the defendant, which commonly takes five to ten days according to the DLA Piper litigation guide. The defendant answers with a statement of defense, with its evidence, before the hearing date shown on the service document. Where facts are disputed, the court may appoint an expert from the Ministry of Justice panel, and the court decides whether to follow the expert report.
The Ministry of Justice offers e-services on its Adl portal. Its March 2024 guide for lawyers lists a service that lets registered lawyers file statements of claim remotely from their offices, authenticated through the Hawiyati app, and a service for payment orders that lets them file remotely and print the stickers for the document folder. The guide does not describe an online filing route for individual claimants without a lawyer, and we have not found one. We confirm the current portal steps and fees at filing.
Preserving evidence before and during a dispute, Articles 51, 71 and 72
Evidence can be secured before a case starts. Under Article 51, a person who fears losing the chance to hear a witness on a matter not yet before the courts, but likely to be, may ask the judge of summary matters to hear that witness in the presence of the interested parties. Article 72 allows a similar request for an inspection of facts that may disappear, such as the state of goods, premises or a delivery. Article 71 lets the court itself inspect the subject of the dispute and appoint an expert to assist.
In practice we advise clients to act at the first sign of a dispute: keep the original contract and every amendment, collect delivery and acceptance records, export electronic messages, ask for an inspection when goods or works will change, and send clear written notices with proof of sending.
How our Kuwait office prepares a commercial dispute file
Our Kuwait office starts with the elements the client must prove under Article 1 of the Evidence Law, lists the document that supports each element, and notes which are official, private, electronic or foreign. We then check signatures and dates, plan certified copies, legalization and translation, prepare an indexed bundle in Arabic, and decide whether a pre-action inspection or a request for production is worth making. We re-check the current text of the laws and the portal procedure at each stage.
See also: our Kuwait commercial arbitration guide and our Kuwait compliance and regulatory guide, plus our commercial and corporate practice.
Frequently asked questions
Where are the evidence rules for a commercial claim in Kuwait?
They are in the Law of Evidence in Civil and Commercial Matters, Decree-Law 39 of 1980, and not in the Procedure Law, which governs filing, service and hearings. Electronic records are covered by Law 20 of 2014 together with the Evidence Law.
Does a signed contract prove itself in a Kuwait court?
Under Article 13 of the Evidence Law a private document is treated as coming from the person who signed it unless he expressly denies his handwriting, signature, seal or fingerprint. If he denies it, the court can order verification and comparison under the articles that follow.
Can I prove a commercial transaction by witnesses?
Article 39 of the Evidence Law limits witness proof for legal acts above five thousand dinars in non-commercial matters, and in commercial matters the court has more room. Articles 40 and 41 still restrict oral proof that contradicts a writing, so documents remain the safer route.
Are emails and electronic signatures accepted as evidence?
Article 3 of Law 20 of 2014 gives electronic records and signatures the same effect as written ones when they meet the law. Authentication questions go back to the Evidence Law under Article 7, so keep native files and signature certificates.
Is an apostille enough for a foreign document in Kuwait?
No. Kuwait is not on the list of parties to the Apostille Convention that we checked, so foreign documents usually need the attestation chain ending with the embassy of Kuwait and the Kuwait Ministry of Foreign Affairs, and an Arabic translation.
Can I file a commercial claim online in Kuwait?
The Ministry of Justice portal lets registered lawyers file statements of claim and payment orders remotely, according to its March 2024 lawyer guide. We have not found an equivalent route for claimants without a lawyer.
Can a court make the other side hand over a document?
Yes. Article 22 of the Evidence Law lets a litigant request an order for a document the opponent holds, in the cases listed, and Article 23 sets the consequences, including an oath if the document is not produced.
How can I get advice on a commercial dispute file in Kuwait?
Please contact our team through the contact page with the contract, the key documents and a short summary of the dispute. Our Kuwait office will tell you which documents are strong, what is missing and what to preserve first.