FATCA, enacted in 2010 by the US Congress, targets non-compliance by US taxpayers using foreign accounts and requires foreign financial institutions to report information about financial accounts held by US taxpayers, or by foreign entities in which US taxpayers hold a substantial ownership interest. We now have a dedicated legal team specialized in positioning clients to understand, respond and comply with the complex US Foreign Account Tax Compliance Act (FATCA) requirements set out by the US government this year catering specifically to:

• High-net worth individuals in Kuwait
• Family holding companies

 

We work closely with FATCA specialists and international legal experts Withers Worldwide and are now the best placed firm in the region to help clients navigate the compliance process effectively and efficiently.

The judge of summary matters at the First Instance Court, Mr. Hesham Abdulla, ruled for imposing attachment on a foreign ship at one of Kuwait’s ports, as it is indebted to the company claiming attachment due to supplying the ship with fuel required to operate it at Colombo and Singapore ports, without paying the value of this fuel, provided the attachment is removed if a guarantee or bond agreed upon by the litigants is submitted. The attachment applicant was obliged to file a case within three days from the date of issue of the attachment permit, in preparation of obtaining an executive form. If the case is not filed in due time, the attachment shall be removed of the said ship.

Details :
The incident is concluded in that the agent of the creditor company of the ship in Kuwait, lawyer Hassan Al Mousoi, submitted an application to impose attachement on the ship, to the judge of summary matters at the Court of First Instance, at the end of which he called for imposing attachment on the ship ( ), registered with the world Marine Organization, and on all equipments, fixtures, furniture, moveable properties thereon, excluding the personal effects of its crew, and to prevent it from departing Kuwaiti ports, in order to guarantee the repayment of the debt. This is based on the fact that the captain of the ship on which attachment is required to be imposed, has furnished in his capacity the ship with the quantities of fuel required to operate it at Colombo Port then Singapore Port. This is according to two supply receipts and invoices signed by representatives of the ship owners. The attachment application on the ship relied on the provision of paragraph 10 of article 73 of the decree law NO.28 of 1980 in connection with Kuwait marine trade law, which permits imposing attachment on a ship according to the order of the judge of summary matters. This attachment is not to be imposed unless for settlement of a maritime debt. Maritime debt means is claiming a right, the source of which is one of the following reasons, including the supply of products or tools required to operate or maintain the ship at any place where the supply took place.

Comment :
Lawyer Hassan Al Mousoi, the agent of the detaining company, that although the decree law No.1980/28 promulgating the maritime trade law is relatively old, compared with the developments witnessed by commercial transactions in the field of maritime trade, with the help of God, we were able to apply and obtain from the judge of summary matters according to the provision of article 73 and other articles, which have done justice to the litigation parties, as stated in the above text when it pointed to the possibility of ending the dispute according to agreement between parties. This conforms with the proper law and practical reality of the volume of losses resulting from elongating the detention period, as well as the prompt reply of the general administration for execution for the necessity of finalizing the procedures within a very reasonable and suitable time for the case being handled.

Chair of the press, freedom of expression and publishing committee at Kuwait Lawyers Society and the legal advisor, lawyer Adawya Al Dughaishm, has confirmed that the press is one of the most significant modern means for expression opinion, as it is the freedom of the individual to publish whatever he wants by the newspaper and be able to express his opinions through articles, for the intention of informing the public opinion. This may include a criticism of persons or their status and reputation, and usually it may be a component for the slander, insult or humiliation crime.

She explained that in order to reconcile between the two considerations, the required legal controls comprised by the articles of law ere laid down. Al Dughaishm said in a press statement in connection with the remarks on the government’s proposals for amendments on the printing and publishing law and the audio-visual law, that the freedom of expression is one of the basic human rights. Among his basic rights is to have freedom of thinking and expression of his opinion. In view of the significance of expression of opinion, it holds a high status in democratic regimes where it is never constrained unless by legal restrictions aimed at placing a reasonable scope for preventing its use as a weapon for harming others.

She pointed that the press may uncover the shortcomings of the society and drive the authorities in charge to reform and perfect this shortcoming, whether from the social, economic or cultural aspects. This basic role of the press requires it to be free in order to perform its mission. Such freedom does not mean it is not responsible for what it publishes, as freedom and responsibility are intertwined.

Important role

 

She said the press has an important role and many functions. In addition to influencing the public, it endeavors to provide free environment for the growth of society with enlightened knowledge which indicate to the people the opinion, and contributes by an effective role in rationalizing solutions, particularly in connection with the interests of the nation and citizens. The newspapers are considered one of the most significant media means to publish a certain ideology and influence the public opinion. She confirmed that among its most important functions is to express the public opinion trends. Therefore, they should express their hopes, ambitions and credibility, as well as their problems with outmost honesty.

Further, the press plays a big and significant role in providing the society with knowledge and culture by publishing international and local news and the scientific analyses of the various phenomena of life, as well as the concerns of the community members, deliberations at general meetings and all general matters in the society.

Publishing and Press Law

 

Al-Dughaishm said talking about the press and publishing law means talking about freedom, particularly the freedom of publishing and opinion. The statement for the necessity of placing a legislative regulation of the printing and publishing should also consider the freedom of the individual and general interest. It is intuitive that the freedom of the individual should be maintained and that private life is the property of their owners. However, on the other hand, the general interest should be above all consideration.

She added: Here is the problem in connection with the press, publishing and circulation of printed matter. The media, particularly the press, has a very significant role for setting up a moral unity between members of the society. The journalist, while fulfilling his social function, perhaps its performance may infringe upon certain persons and authorities, whereby his journalist performance may not be possible in the image required by the general interest without such infringement.

Further, all the legislations have established that this infringement should be permitted to weigh between two rights, one is more significant than the other. The legal ground for this is the (use of right). Each citizen may contribute in the service of the community by the appropriate means without infringing upon the freedom of others whenever possible. If the work of journalism is surrounded by risks, the matter requires the legislator to organize and provide an amount of freedom to the press without restricting such freedom.

General freedoms

She pointed out that the freedom of opinion is one of the basic general freedoms guaranteed by the constitution and the international conventions. The press may uncover the shortcomings of the society and drive the concerned authorities to reform and perfect such shortcomings. This is the basic role of the press which requires it to be free in order to perform its mission. The matter requires the legislator to organize and provide an amount of freedom to the press without restricting this freedom, as there is a difference between organization and restriction.

Al-Dughaishm said “we find that the new printing law contradicts with the provisions of the constitution, specifically articles 36 and 37, which stipulated that the freedom of the press and publish is guaranteed. This means that it may not be exposed to restriction and forfeiting. We note that law 2006/3 followed the footpath of the old law, in connection with the imprisonment sentence of the journalist. It is more suitable to remove any freedom restricting publishing, as the financial compensation penalty is sufficient for deterrence in case of confirming the violation. Therefore, we do not need reinforced punishments, in view of the existence of the civil part related to compensation, and the affected party resorts to the compensation case.

Prior Censorship

Further, article 22 of law 2006/3 which permitted the minister to prohibit the publishing of any commercial or other advertisings, which is considered as a prior censorship and contradicts with the provision of article 8 of the same law, which determined that the press is not subject to any prior censorship.

Al Dughaishm said “article 29 of law 2006/3 stated that the concerned minister shall pass a decree in connection with the audio prints subject to the provisions of this law, their license fees, inspecting and controlling them and shutting them administratively. It is more important to cancel the provision of article 29 of this law as it imposes a guardianship on the journalists and writers in terms of what is written, or it should be placed within the framework of specific acts, instead of the general guardianship of the Ministry on all the writers and journalists by criminalization.

She added that the provision of article 11 which stipulates prohibiting the license to a firm or company whose capital is less than 250 thousand dinar. This condition has denied individuals from being licensed to publish a newspaper, and is considered and is considered as a disabling condition, which implies that the opinion holder should be the owner of a financial wealth, otherwise he will be denied from his right to publish a newspaper in which he expresses his opinion. The fact is that this conditions represents a real forfeiting of freedom for those who are financially disabled among the opinion makers and those with enlightened ideology. Further, this condition contradicts with the constitution and breaches the principle of equal opportunities between the citizens of the one country.

Prohibited matters

Al-Dughaisham pointed out that the expressions used by the law for indicating the matters prohibited to be published included loose expressions which carry many interpretation. A number may see in a certain expression an infringement on the dignity of persons, while others see that it does not carry any infringement. Hence, the judgments of the courts differ from one case to the other. This may provoke a number of litigants who see in them a discrimination without justification. Therefore, the matters require placing controls for what is considered as infringement on the personal dignity or what is considered as such, after obtaining the opinion of the concerned parties, and after reviewing the cases in which the judgments were passed and laid down a concept for infringement on the dignity of persons.

As regards the proposal for amendment and addition of a new provision “criminalization of any prohibition of insult, defamation or slander of the National Assembly or Council of Ministers.” This proposed provision has laid down a confirmation for shutting the mouths. It will imply loss of the real control over the works of the National Assembly and Council of Ministers.

She confirmed that we reject the amendments proposed on the printing and audio visual laws by reinforcing punishments, as they encroach upon freedoms widely. She pointed out that it is evident from reinforcing the amount of fines to a disabling limit may lead the journalist to imprisonment if he is unable to pay the fine, by a penalty not exceeding six months. This means that placement of the fine is disabling, making imprisonment more likely than payment of these fines, which are exaggerated and make imprisonment a matter which may be necessary in all violations.

More freedoms

Al-Dughaisham called upon the concerned state authorities which endeavor to achieve more freedoms to conduct the required amendments on the printing and publishing law.

Non respond of companies to hold the general assembly is one of the most significant problems of shareholders.

The 3rd summary appeal chamber, chaired by counsel Ibrahim Al Seif, ruled for cancelling the appealed judgment and ruled anew for discontinuing the execution of the mortgage contract pending decision in the settlement application submitted by the appellant and obliged the first respondent with the expenses and attorney’s fees.

The facts of the case are summarized in that the plaintiff filed it against each of the legal representative of Kuwait Finance House and the legal representative of the Gulf Bank in his capacity, and the execution department manager in his capacity, calling for discontinuing the execution of the mortgage contract concluded with one of the litigants, pending termination of the debt settlement procedures by the managing bank, in implementation of law NO.28/2008 and its regulation in connection with setting up a fund to address the conditions of citizens who defaulted payment of consumer loans and loans on installments, as one of the litigating banks imposed executive attachment on the property of the appellant which he uses as a residence for him and his family, in enforcement of the mortgage contract concluded with him. The appellant submitted an application to the managing bank to settle his debt as per the above law and his application is under investigation, and that selling the property will result in gross irreparable damages.

Fining the complainant
The first instance court ruled for dismissing the case in terms of the subject matter and fined the plaintiff the amount of one hundred Kuwaiti dinar, as well as forfeiting the bail, on the ground that he has submitted an application to the managing bank but has not submitted the procedures taken in connection with this application, although the court permitted him to do so. He challenged the previous judgment by appeal and called for its cancellation. He was attended in front of the Court of Appeal summary chamber by lawyer Ali Al Attar from the office of lawyer Meshari Al Ousaimi, as his attorney and lawyer. He indicated in his pleading the reasons of the appeal which blemished the judgment and explained that the appealed judgment has breached the proofs in the papers, and that it has prejudiced the rights of the appellant. He indicated the aspects of this breach in the papers and ended his claims with cancelling the appealed judgment and ruling anew for discontinuing the enforcement of the mortgage contract pending decision in the application submitted to the managing bank for settlement of the debt of his client.

The court concluded its judgment with the following:
Opening the door
Whereas it is evident to the court from the papers that the appellant has submitted an application to the managing bank according to law No.28/2008 in connection with the funds for addressing the condition of citizens who defaulted repayment of consumer loans according to its 12th article in the settlement application. Whereas this application has not been decided yet and accepting the settlement means assignment of the case exchanged between the indebtedness parties. Therefore, the appellant’s dispute is substantial. Whereas the appealed judgment breached this view, therefore the court ruled for its cancellation and ruled for discontinuing the enforcement of the registered mortgage contract pending a decision n the settlement application Lawyer Ali Al Attar commented on the judgment by stating that this judgment opens the door for all citizens who have already submitted an application according to law No. 28/2008 in connection with the fund for addressing the conditions of citizens who defaulted repayment of consumer loans for the request of protection against any action taken against them by the authorities subject to the law, pending decision in their applications.