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common law, by an action commenced on the foreign judgment in the BVI court. The BVI court may enforce the
relevant judgment, provided that: (i) the judgment has not been wholly satisfied; (ii) such US court had jurisdiction in
the matter and the BVI Company either submitted to the jurisdiction of the foreign court or was resident or carrying on
business within such jurisdiction and was duly served with process; (iii) in obtaining judgment there was no fraud on the
part of the person in whose favour judgment was given or on the part of the US court; (iv) recognition or enforcement of
the judgment in the British Virgin Islands would not be contrary to public policy or for some other similar reason the
judgment could not have been entertained by the BVI court; and (v) the proceedings pursuant to which judgment was
obtained were not contrary to natural justice.
Furthermore, the BVI court will not necessarily enter judgments which are predicated on US federal or state securities
laws.
Kuwait
The Indenture and the Notes (the “
Documents
”) each contain provisions whereby the Guarantor has agreed to the
courts of the State of New York having exclusive jurisdiction to settle any disputes arising under or in connection with
the Documents. Although the choice of submission to the jurisdiction of the courts of New York State in the Documents
is valid and binding, if a claim is brought before the courts of Kuwait (the Kuwaiti Courts), the Kuwaiti courts may still
accept jurisdiction in any suit, action or proceedings in the situations identified in Articles 23, 24 and 26 of Kuwaiti Law
No. 38 of 1980 (the Code of Civil and Commercial Procedure), as amended (the Code). These situations include (a)
where the defendant expressly or impliedly accepted the jurisdiction of the Kuwaiti courts, (b) where the defendant is a
Kuwaiti national or is a foreigner with a domicile, a place of residence or an elected domicile in Kuwait or (c) if such
legal proceedings relate to property (movable or immovable) located in Kuwait, an obligation created, executed or
required to be performed in Kuwait or a bankruptcy adjudicated in Kuwait.
There can therefore be no assurance that the Kuwaiti courts will decline jurisdiction to adjudicate any dispute under the
Documents, notwithstanding that the Documents provide that the courts of New York State shall have exclusive
jurisdiction to settle any disputes arising thereunder. The Kuwaiti courts could be influenced when deciding whether or
not to decline jurisdiction by the existence of proceedings relating to such dispute in another jurisdiction.
The enforcement of a monetary judgment (not involving the payment of taxes or the like) obtained in the courts of New
York State by the Kuwaiti courts would require the filing of an enforcement action in the Kuwaiti Courts. Such action
does not involve either a re-trial or an examination of the merits of the case; its sole purpose is to establish whether the
judgment is compliant with the provisions of Article 199 of the Code which require that: (a) the courts of the
jurisdiction by which the judgment was rendered must afford reciprocal treatment to judgments rendered in Kuwait; (b)
the judgment must be rendered by a competent authority according to the law of the jurisdiction in which it was
rendered; (c) the parties must have been duly summoned to appear and were duly represented at the proceedings; (d) the
judgment must be final and non-appealable (res judicata) according to the law of the jurisdiction in which it was
rendered; (e) the judgment must not contradict any prior judgment rendered by a Kuwaiti court; and, finally (f) the
judgment must not contain anything in conflict with the general morals or public order of Kuwait.
In respect of the requirement that the courts of the jurisdiction in which the judgment was issued must afford reciprocal
treatment to judgments issued by the Kuwaiti courts, there is no treaty between Kuwait and the United States that
affords such required reciprocal treatment. There are no known instances of the courts of the United States enforcing
Kuwaiti judgments. We are aware of one instance where a monetary judgment issued by a court of the State of
California was enforced by the Kuwait Court of First Instance in 2000. It should be noted that precedents are not
binding on but only of persuasive value to the Kuwaiti courts.
Egypt
Kuwait Energy (Eastern Desert) Petroleum Services SAE is a joint stock company organized under the laws of Egypt.
Judgments rendered by a court in any jurisdiction outside Egypt may be recognized by courts in Egypt as per the same
terms of their enforcement in their country of origin. However, in order for a foreign judgment to be enforceable in
Egypt, an exequatur proceeding has to take place. An exequatur may not be granted unless the following conditions are
met:
•
the courts of Egypt are not competent to hear the dispute which constituted the object of the foreign judgment,
and the foreign court is shown to have been competent to hear the dispute in accordance with its laws;
•
the parties to the dispute were duly notified and properly represented in the proceedings;
•
the judgment is final and conclusive in accordance with the laws of its place of issuance; and
