By Fadia Al-Refai
As a semi-blonde senior law student supported by many of my professors to talk about important legal matters in a student’s young abstract point of view, I finally feel like I can have my Elle Woods moment. My dear reader, before you run away expecting tough legal jargon, I assure you that this topic concerns everyone, whether you are a member of the legal profession or just someone looking out for the greater good of our country.
As a legal amateur who has somewhat seen the legal scene in Kuwait whether that of law firms or different courts (criminal, corporate, administrative) it is more than fair to say that today the courts are being overloaded with so many cases, (of importance and of not) to which arises a question of how much more can the legal system take before collapsing? In plain English, the input is much larger than the output. This is not an opinion, it’s a fact. There are more than 65,000 cases that have been in the court of cassation for almost ten years without a ruling, as I quote professor of private law Ahmed Aljarallah in a seminar which he gave on the July 3 in the Kuwait Commercial Arbitration Centre.
Now, this delay could, theoretically, be for many reasons whether because of the limited number of judges — despite having many allegeable youthful Kuwaiti candidates — or because of many loopholes in our procedural laws. But in my humble point of view, it has been brought to my attention through the intensive course I am taking at the Kuwait Commercial Arbitration Centre, one of the reasons is because in Kuwait we are not educated about alternative ways of dispute resolutions and run the judicial path as soon as a dispute occurs.
Now, with that said, alternative dispute resolution (ADR) is a specialization of its own, but what is important to know is that it is a way of resolving the issue where the two sides of this dispute entrust qualified arbitrators to try to resolve it without having to go to court. Whether this is done through arbitration, which is quite frankly the last mean of ADR, or mediation, or conciliation, it is no magic potion that when 65,000 different cases are divided upon three or four different groups, the judicial system will have the chance to catch a breath! In England today, 90 percent of disputes are being solved through ADR (quoting the same seminar) as ADR has become a key part of the western legal culture, whether in the US or the UK.
What this tells us is that this means of dispute resolution is not only as effective as litigation and not only does an arbitrator or mediator have the characteristics of a judge — experience, neutrality, objectivity, and confidentiality — but it is a faster and more efficient way of doing so. What supports this argument is that by Kuwaiti law originally trials are public and by exception confidential, where in ADR the trial, the ruling and all that comes with it is 100 percent confidential! Not only that, but according to article 181 of the Kuwaiti civil procedural law, all in all the process of arbitration has to end by six months.
Most importantly, while the job of a judge is strictly given to those with law degrees, arbitrators could be anyone who the parties decide is qualified, so that an engineer can look at the contractual engineering disputes, and a doctor can look at a medical dispute etc. In conclusion, personally I hold nothing but respect and praise for my country’s legal system, and because of that it is my duty to try to make sure it does not collapse by trying to lift some off the burden of its shoulders.