Preemption in Shares Commentary on the Ruling Issued by the First Circuit, a Civil Commercial Government in the Kuwait Court of Appeal dated 1 October 2017, in Appeals No. 1704, 1783/2017, Civil Commercial Government, not published
The Court of Appeals was presented with a dispute concerning the recovery of shares sold. The shareholder of a simplified joint-stock company had invoked the right of preemption, which is established by the Civil Code. The Court decided (on 1/10/2017, Appeals Nos. 1704, 1783/2017, Commercial, Civil, Governmental, Unpublished) that the shareholder could return the sold shares in accordance with his right of preemption. It considered that Company Law did not regulate the restitution of shares in the joint-stock company and that it was, therefore, necessary to refer to the provisions of the Civil Code. We think the decision of the Court of Appeals is subject to criticism. Firstly, even though the legislator does not regulate the restitution of the shares of the holding company, he refers to the regime applicable to the company from which the holding company takes its form. In this case, the holding company took the form of a joint-stock company, whose legislator had organized the shareholder's right to recover the shares offered for sale. Secondly, the Court did not follow the order of the official sources of the legal rule governing companies, namely company law, commercial law and commercial customs. Thirdly, the subject matter of the right of preemption is a real and undivided right, which is not the case for the share, since it is a personal right.
Al-Rashidi, Hussein Muheisen
"Preemption in Shares Commentary on the Ruling Issued by the First Circuit, a Civil Commercial Government in the Kuwait Court of Appeal dated 1 October 2017, in Appeals No. 1704, 1783/2017, Civil Commercial Government, not published,"
Journal Sharia and Law: Vol. 2020:
82, Article 4.
Available at: https://scholarworks.uaeu.ac.ae/sharia_and_law/vol2020/iss82/4