Kuwait Reinstates Debt Imprisonment as an Enforcement Measure

In 2020, Kuwait issued a robust Bankruptcy Law (71/2020) which comprehensively revoked all provisions relating to the imprisonment of debtors. On 30 March 2025, about five years later, Kuwait reversed course and reinstated debtors’ prison as a means to enforce civil and commercial debts. The new amendments to the Civil and Commercial Pleadings Law (38/1980) (“Pleadings Law”) also introduce new tools which aim to allow creditors to enforce judgments and trace debtors’ assets effectively.  This note aims to explore the historical context, substance and potential effects of these new amendments (the “2025 Amendments”).

Historical Context and Justifications

Debtors’ prison is a commonly used phrase to refer to the concept of imprisoning a person who fails to pay a debt they owe to another. This concept is different to the situation wherein an offender is jailed or imprisoned for committing a criminal offense. Although debtors’ prison is a relic of past centuries in many countries, it persists in several other countries, especially regionally. International treaties do not favor debtors’ prisons; Article 11 of the International Covenant on Civil and Political Rights (“ICCPR”) states that “[n]o one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.” In Kuwait, the imprisonment of debtors was in effect until 2020 when the Bankruptcy Law revoked its operational provisions. The 2025 Amendments reinstated these operational provisions with several changes. The Explanatory Note of the 2025 Amendments offers practical and legal justifications for the reinstatement of debt imprisonment: “It was discerned from the practical implementation of the enforcement principles in the [Pleadings Law] and the revocation of the provisions relating to the imprisonment of debtor[s] pursuant to the [Bankruptcy Law] that solvent debtors were able to escape enforcement measures taken against them to prevent the satisfaction of their debts[.]

[… This] caused an increase in the percentage of bad debts, whether they were civil or commercial debts, [and this] has a strong and real effect on both the creditor who suffered the trouble of obtaining a writ of enforcement and the economic environment of the state and its ability to attract foreign investments, and it detracts from Kuwait’s path towards being a financial and commercial center for investments and achieving its ‘New Kuwait’ vision.

[… And] there is nothing in adopting [debt imprisonment] that which violates international treaties which Kuwait ratified, because these treaties bar the imprisonment of the debtor who is unable to satisfy his financial obligations, as[provided for in] Article 11 of the [ICCPR … and] Article 18 of the Arab Charter of Human Rights […], and the bill is aligned with that direction as it shielded [debt imprisonment] with a fence of guarantees; at the forefront of which is the condition that the debtor must be solvent and able to perform [his obligations], and that the debtor’s solvency is based on attachable property.”

It is apparent that the government found that the five-year period since the revocation of debt imprisonment evidenced a trend of debtors escaping their obligations even though such debtors were financially capable of satisfying their debts, hence creating a ‘bad debt’ phenomenon in Kuwait. The government offers no empirical evidence supporting its assertion though.

Substance of the 2025 Amendments

With respect to the imprisonment of debtors, the 2025 Amendments state, in summary, the following:

• The period of imprisonment may not exceed six months.
• The order could specify a continuous or intermittent period of imprisonment.
• The debtor cannot argue inability to perform the debt obligation if the debtor hasconcealed or disposed of funds with an intent to harm the creditor.

• The Judge-in-Chief of the Enforcement Department may, if the creditor consents, grant the debtor an instalment payment order only if it is proven that the debtor cannot immediately perform the debt obligation fully. If the debtor breaches the instalment payment order, the order is revoked ab initio.
• The debtor may file a grievance against the imprisonment order.

• The debtor is under 21 and over 65.
• The debtor is a parent to children under the age of 18 and, at the same time, whose spouse is dead or imprisoned for any reason.
• The debtor is a spouse, child or parent of the creditor unless the debt obligation is alimony or maintenance under the family law framework.
• The debtor exhausted the maximum period of imprisonment for that specific debt, six months.
• The debtor supplies a sufficient bank guarantee, in-kind guarantee equivalent to the debt obligation or an able guarantor accepted by the Judge-in-Chief of the Enforcement Department.
• The debtor suffers from a disease which is incompatible with imprisonment.
• The debtor is pregnant.
• The debtor’s solvency is based on unattachable property.

•  This aims to uncover the debtor’s undue disposal of property to escape payment of the debt obligation and to alert other players in the financial market of the debtor’s default.

• These applications were routinely used by debtors to frustrate and delay enforcement because, once filed, the applications would automatically suspend all enforcement measures by virtue of the debtor’s allegation that a grave procedural defect affected the enforcement measures. The applications were routinely filed frivolously and attempted to buy more time for debtors. With the 2025 Amendments, a court may impose higher fines on the applicant if the applicant loses.

• Before the 2025 Amendments, attachments on a debtor’s debtor were similar to a photographic camera’s click; they captured just one point of time, the time upon which the attachment order was issued. Hence, the debtor’s debtor, which in many instances could be the bank in which the debtor has an account, would only declare, hold and deposit the funds or properties possessed by the debtor’s debtor at the time the attachment order was issued.
• The 2025 Amendments here, however, now impose a continuous obligation on the debtor’s debtor to declare to the Enforcement Department any newly received funds or properties so long as the attachment order is in effect. This will allow the creditor’s attachment order on the debtor’s debtor to have more bite.

Potential Effects of the 2025 Amendments

The 2025 Amendments should, in theory, represent a regrowth of the enforcement framework’s canines in Kuwait. Creditors could now expose debtors’ undue disposal of their property and any accrued funds and properties in the debtors’ bank accounts and other financial institutions. In addition to travel bans, creditors now also have the renewed right to apply for imprisonment orders against their debtors. And the drafters of the 2025 Amendments argue that reinstituting debtors’ imprisonment is not as draconian as it seems because it aims to penalize solvent debtors rather than indigent ones.

A more skeptical view of the 2025 Amendments emphasizes the ineffectiveness of the Enforcement Department as an institution. The Enforcement Department is already drowning with thousands of open enforcement files coupled with limited personnel and traditional modus operandi. With many enforcement departments regionally utilizing electronic systems to communicate and impose enforcement measures, the reality of Kuwait is that creditors (or their counsels) still need to physically attend the Enforcement Department to get most things moving. It is doubtful that the Enforcement Department is even capable of affording debtors with the due process required by the 2025 Amendments before imprisonment orders are issued.

The 2025 Amendments do not go so far as to even attempt to match the progression of other enforcement systems in the region; the 2025 Amendments merely build on some of the 45-year-old Pleadings Law’s enforcement measures without revamping the whole system.

Finally, and even though partially unrelated, it seems preposterous as a concept for a debtor to be subject to imprisonment even though the debtor has a pending unheard petition at the Court of Cassation which probably would take years before it is ever heard. It would be more palatable for debtors to accept imprisonment as a remedy for their default if their Court of Cassation petitions are heard and adjudicated in a quicker manner.