On 10 March 2025, the International Centre for Settlement of Investment Disputes (“ICSID”) issued its Final Award in the arbitration between French-Syrian media entrepreneur Bachar Kiwan and the State of Kuwait (ICSID Case No. ARB/20/53).
In an affirmation of the rule of law, the Tribunal has recognized serious due process violations and a denial of justice suffered by Mr. Kiwan. While no monetary damages were awarded, the Tribunal determined that Kuwait had failed to uphold certain obligations under the France-Kuwait Bilateral Investment Treaty (“BIT”), particularly in relation to fair and equitable treatment, committing a denial of justice. The Tribunal also declined to award Kuwait its claimed arbitration costs of over USD 6.6 million.
A Rare Finding of Denial of Justice
Among the Tribunal’s most notable findings was its assessment of Mr. Kiwan’s conviction for human trafficking. He was convicted in absentia for “smuggling” himself out of Kuwait – an allegation the Tribunal found illogical and incompatible with international law (“However, the Human Smuggling Conviction, in circumstances where it is undisputed that the Claimant was the object being smuggled, makes no sense and is contrary to international law principles and protections against victims of human trafficking.”)[1]
The Tribunal found that the prosecution and conviction were not only legally baseless but also amounted to a denial of justice, as the very legal framework Kuwait relied upon explicitly protects individuals who are the object of human trafficking rather than criminalizing them. By prosecuting Mr. Kiwan under such circumstances, the Kuwaiti judiciary blatantly disregarded international norms and principles of justice (“Therefore, the Tribunal finds the Human Smuggling Conviction to be so egregious and absolute in its denial of justice, based as it is on a crime that the Claimant – as the object of smuggling – simply could not commit.”)[2]
This is a significant and rare ruling in investor-State arbitration. Tribunals are often cautious in declaring a denial of justice – one of the most serious breaches of international law that a host State can commit.
While the Tribunal ultimately decided not to award damages for this treaty breach, which had not been discretely quantified, the legal significance of the finding stands on its own. It confirms that Mr. Kiwan was subjected to arbitrary and unjust treatment by the Kuwaiti courts, and that this treatment violated Kuwait’s obligations under international law.
Defamation Case: A Flawed Judgment
The Tribunal also noted irregularities in a defamation case brought against Mr. Kiwan, which also originated from a legal complaint filed by Sheikh Sabah, Mr. Kiwan’s former business partner and the son of Kuwait’s former Prime Minister.
The Tribunal observed that the appellate decision left ambiguity regarding whether the conviction remained in force against Mr. Kiwan, even after his co-defendants’ sentences were overturned. This lack of clarity raised serious concerns about his ability to seek effective legal recourse and due process (“Unfortunately, the Respondent’s position that the Claimant’s Defamation Conviction may have been vacated together with the convictions of his co-accused, but that it is not definitively clear that this has happened, underscores the Claimant’s due process concerns arising out of this particular judicial process.”)[3]
The “procedurally unsatisfactory state of affairs” was not the only element of the Defamation Conviction that troubled the Tribunal.[4] The Tribunal also noted that the Defamation Conviction against the Claimant and his two personal lawyers was instigated by Sheikh Sabah as part of his campaign against the Claimant.[5] The Tribunal, therefore, found serious question of due process:[6]
However, as discussed above, the Respondent did not provide that assurance to the Claimant or to the Tribunal. Its inability to do so, coupled with a decision taken somewhere in the Kuwaiti justice system to appeal the Court of Appeal decision to the Court of Cassation, and at the same time to prosecute the offence a second time at first instance, give rise to serious questions of due process.
Breach of Due Process in Corporate Proceedings (AWI Dividends Decision)
A further due process violation the Tribunal found was in a judgment ordering Mr. Kiwan to pay over USD 14 million in dividends to Sheikh Sabah from their joint company, Al Waseet International (“AWI”). The case stemmed from a claim brought by Sheikh Sabah before Kuwaiti courts, alleging that he was owed significant dividends from Al Waseet International. Mr. Kiwan contested this claim, arguing that the dividend payment dispute was manufactured and that no such dividends had been declared or distributed during the relevant period. He contended that the case was part of a broader campaign by Sheikh Sabah, with support from the State apparatus, to confiscate his investments and destroy his reputation.
The ICSID Tribunal did not delve into the merits of the case whether dividends were actually due. Instead, it focused on the procedural irregularities in how the Kuwaiti judiciary handled the case. The Tribunal found serious due process concerns and evidence suggesting the decision was politically motivated.
The Tribunal recognized that the decision to hold Mr. Kiwan personally liable for USD 14 million raised due process concerns. The Tribunal had “concerns as to the fairness of the extant AWI Dividends Decision”.[7] The Tribunal found evidence that “Sheikh Sabah weaponized insolvency (and criminal and other civil) court procedures in a concentrated and concerted campaign to put the pair’s joint investments out of the reach of the Claimant. As discussed […] in relation to the AWI Dividends Decision, he further utilized the insolvency processes to ensure that certain investment value was transferred to him.”[8] The Tribunal also found Kuwaiti “lapses during a period in which the Prime Minister’s son was able to extract an unusual level of assistance from the insolvency administrators and the first instance court in the Human Smuggling Conviction and Defamation Decision cases.”[9]
The Award questions the legitimacy of the Kuwaiti judiciary’s handling of the AWI dividends case, a key part of Mr. Kiwan’s claim. Although it stopped short of declaring the judgment void, the Tribunal’s critique of the process is damning. It bolsters Mr. Kiwan’s long-standing argument that the litigation was orchestrated by his former business partner, Sheikh Sabah, to wrest control of the company and suppress Mr. Kiwan’s influence in the Kuwaiti media sector.
Arbitrary Detention and International Human Rights Standards
The UN Human Rights Council’s Working Group on Arbitrary Detention had previously reviewed the Claimant’s detention and found it arbitrary. The Tribunal was critical of the Respondent’s dismissive attitude towards this international body and emphasized the role of international law in holding states accountable (“The Respondent’s counsel is disappointingly dismissive of a process and evidence gathering exercise that plays a critical role in upholding human rights and the rule of law at an international level. International law and international organs such as the UN Human Rights Council exist precisely to hold states to account for the unlawful treatment of individuals.”)[10]
Inequality of Arms
The Tribunal also noted that the Respondent had unfettered access to corporate records and judicial files, whereas the Claimant had to reconstruct his case through fragmented documents recovered outside Kuwait.[11] It further noted that the Claimant was unable to obtain crucial documentary evidence due to the Disputed Measures, which prevented him from accessing his company’s records, legal files, lawyers, and other professional advisors.[12] The Tribunal recognized an inequality in access to evidence, which had to be considered when weighing the available evidence.[13]
No Costs Awarded to Kuwait: A Subtle but Significant Signal
The Tribunal declined to award legal costs to either party, despite Kuwait seeking over USD 6.6 million in costs. This decision is telling. In many ICSID proceedings, the prevailing party is awarded costs, especially when a claim is dismissed. In this case, however, the Tribunal held that neither side was entitled to costs. In a notable remark, the Tribunal stated:
However, as discussed above in […] dealing with burden of proof, there has been a distinct inequality between the Parties in terms of access to full records of the corporate registry, judiciary and courts, prosecutorial office and police. The Respondent has put the Claimant to proof and been forthcoming with records to refute the Claimant’s position or support its own position, rather than to assist the Tribunal to get to the bottom of the dispute based on all available evidentiary records.[14]
The Tribunal also noted:
- “It is abundantly clear from the Parties’ respective costs submissions that the imbalance in access was coupled with an imbalance in resources. Given the significant resources that the Respondent has afforded to its defence, it was in a position to assist the Tribunal from the outset by producing clear chronological records of the multitude of judicial and administrative proceedings in Kuwait that formed the basis for the Disputed Measures and treaty claims against it.”[15]
- “Instead, the Respondent apparently took a strategic decision aggressively to put the Claimant to proof on each of his points and to produce evidence only to rebut specific allegations to support its overall theme that the Claimant is lying to the Tribunal. It is entirely up to the Respondent how it chooses to run its case. However, its approach made the proceedings and the Tribunal’s task of sorting through the fragmented evidence considerably more onerous and lengthier.”[16]
The Tribunal concluded that as the Respondent “too has not been entirely successful, with a finding of violation of the fair and equitable treatment protection standard against it, the Respondent shall not be awarded its costs”.[17]
In practice, this means that despite the lack of a financial damages award in Mr. Kiwan’s favour, the State of Kuwait was also denied any recovery.
Conclusion: Legal Findings with Broader Implications
Although the arbitration did not result in a financial award, the Tribunal’s recognition of serious procedural violations carries broader implications. The Award reinforces the importance of judicial transparency, adherence to due process, and the role of international law in safeguarding investor rights.
[1] Award, ¶ 692.
[2] Award, ¶ 693.
[3] Award, ¶ 743.
[4] Award, ¶ 744.
[5] Award, ¶ 745.
[6] Award, ¶ 746.
[7] Award, ¶ 706.
[8] Award, ¶ 649.
[9] Award, ¶ 792.
[10] Award, ¶ 782.
[11] Award, ¶¶ 292-293.
[12] Award, ¶¶ 266-267.
[13] Award, ¶¶ 295-296.
[14] Award, ¶ 930.
[15] Award, ¶ 931.
[16] Award, ¶ 932.
[17] Award, ¶ 933.
