Skip to content

Expert Insights

05 July 2022

A New Era: English Language Litigation in the Kingdom of Bahrain

In an article published by The MENA Business Law Review, Jodie Martyndale-Howard, Associate discusses in more details the recent changes allowing for English language litigation in Bahrain at the Bahrain Chamber for Dispute Resolution (BCDR).

Over the past six months, there has been a significant shift in domestic litigation in the Kingdom of Bahrain. The recent issuance of various decrees and regulations will have a direct impact on the way in which cases will be heard before the Courts of Bahrain and, in particular, the Court of the Bahrain Chamber for Dispute Resolution (BCDR).

The issuance of the new Regulations on 23 December 2021 under Bahrain Decision No. 134/2021, coupled with the appointment of new judicial deputies and judges under Bahrain Royal Order No. 3/2022, paves the way for a “first-of-its kind” in the Middle East region, whereby domestic litigation can now be heard and determined in English. In addition, non-Bahraini lawyers may now represent parties before the BCDR Court if the action is taken in association with a Bahraini Lawyer.

The ability to have cases heard in English and for parties to be represented by their preferred legal counsel will no doubt have an impact. The measures will affect cases which would by their nature have fallen within the BCDR’s jurisdiction, but they will also affect in-market contract drafting, with a drive towards having disputes heard in the English language before the Courts rather than in arbitration.

1. Background

The BCDR was established in 2009 by the issuance of Bahrain Decree-Law No. 30/2009, which was later amended by Bahrain Decree-Law No. 64/2014.

Many companies and entities are familiar with the BCDR Arbitration Centre. It has become popular as the administrative body of arbitrations primarily involving Bahraini entities. The latest developments put the BCDR Court front and center of the latest legislative developments.

The BCDR Court’s jurisdiction now encompasses any claim involving a commercial company where the value exceeds BHD 500,000 (approximately USD 1.3 million).

The first amendment that paved the way for the latest developments was the issuance of Bahrain Decree-Law No. 26/2021, which came into effect as of 1 October 2021. It expanded the BCDR Court’s juris[1]diction from being primarily in respect of financial institutions licensed by the Central Bank of Bahrain and disputes of an international commercial nature. The BCDR Court’s jurisdiction now encom-passes any claim involving a commercial company where the value exceeds BHD 500,000 (approximately USD 1.3 million).

This extended remit will mean that many more cases will now automatically fall within the BCDR Court’s jurisdiction, taking them outside of the usual jurisdiction of the domestic Courts of Bahrain.

It should be noted that judgments of the BCDR Court are considered final judgments. As such, they cannot be appealed. This means that the only legal recourse is annulment by the Court of Cassation. Thus, unlike judgments of the Court of First Instance, which can be appealed to the Court of Appeal and upwards to the Court of Cassation, the process of obtaining a final and binding judgment involves only one set of legal proceedings.

2. Latest Developments

A. The Regulations

The first development was the issuance of Bahrain Decision No. 134/2021 by the Minister of Justice, Islamic Affairs and Endowments, pursuant to which the Regulations on Procedures for Resolution of Disputes in turn dictates which matters the Bahrain Chamber for Dispute Resolution has Jurisdiction over (the “Regulations”).

The Regulations, which are only available in Arabic at this stage on the BCDR’s website, include several developments, including Article 5, which states that parties may choose to have a dispute heard in the English language where the following criteria are met:

  1. the contract is in a language other than Arabic;
  2. the use of English must be agreed in the contract, by the parties’ communication or by way of a special agreement; and
  3. the use of the English language must be submitted during the case administration process and within the relevant timeframes.

Translations of pleadings, reports and judgments will no longer be required for non-Arabic speaking managers and personnel of Bahraini companies, nor of non-Arabic speaking experts.

The use of the English language for cases will come with many

advantages including:

  • Translations of documents will no longer be required. This can be an extensive and expensive exercise to undertake, particularly for disputes relating to technical industries such as construction whereby the contract and project documentation will be hundreds if not thousands of pages of data and information.
  • Translations of pleadings, reports and judgments will no longer be required for non-Arabic speaking managers and personnel of Bahraini companies, nor of non-Arabic speaking experts. This cannot only be expensive, but delays the ability to properly review submissions and evidence.

No other domestic courts within the GCC allow for cases to be heard in a language other than Arabic. As such, this is a unique and important development within the Bahrain legal system. It has, as a minimum, important judicial efficiency implications if nothing else. Regular judicial users will view these developments as being much needed in Bahrain and indeed the wider region given the brevity of global inward and outward trade and investment to the region.

Furthermore, Article 23 allows for non-Bahraini lawyers to represent and appear on behalf of parties including filing the case with the BCDR, provided that such action is taken in association with a Bahraini lawyer who is admitted before the Court of Cassation. This is a drastic shift away from the previous position in which only Bahraini lawyers could represent a party. This move will be widely welcomed by the international law firms based both in Bahrain and outside that represent Bahraini companies and their associated global partners, affiliates and subsidiaries.

B. The New Judiciary

On 19 January 2022, by way of Bahrain Royal Order No. 3/2022 on Appointing and Assigning Judges and in which for the first-time, non-Arabic-speaking and non-Bahraini-speaking judicial deputies and judges were appointed to the Bahrain Court of Cassation.

Within the Royal Order, such judicial deputies and judges (together referred to as the “New Judges”) were delegated on a full-time basis to the Court of the BCDR.

The New Judges are:

  1. Professor Jan Paulsson
  2. Mr. Neil Kaplan QC
  3. Dr. Michael Hwang SC
  4. Mr. Adrian Cole
  5. Mr. Michael Grosse
  6. Ms. Nadine Debbas Achkar
  7. Mr. imon Greenberg
  8. Dr. Kareem Hafez
  9. Ms.Amani Khalifa

The appointment of the New Judges goes together with the new Regulations allowing for cases to be heard in English.

Each case before the BCDR Court will be heard by a Tribunal formed of three members, two of which are Court of Cassation lawyers and the third from the BCDR Court’s roster of neutrals.

Each case before the BCDR Court will be heard by a Tribunal formed of three members, two of which are Court of Cassation lawyers and the third from the BCDR Court’s roster of neutrals.

The New Judges include several widely recognized names within the Middle East legal and arbitration community. Their specializations range from general corporate commercial, to telecoms, banking, finance & fintech, real estate, construction and projects, among others.

The expertise of the New Judges in various industry sectors will likely provide a level of comfort to parties when drafting dispute resolution clauses, as parties know that the judges will not only be fluent in English but that the judges forming the tribunal to hear the dispute will understand the nuances of the party’s industry sector, which is pertinent to the dispute.

The level of understanding of different industry sectors is something more commonly seen within the arbitration sphere where parties are generally able to choose among themselves members of the tribunal. To have such capability underpinning the Bahrain system will be greatly welcomed. This is also no doubt one of the reasons why in most high-value contracts across key sectors in Bahrain, including those which the New Judges are specialists within, that arbitration has become the favoured method of dispute resolution.

3. Final Thoughts

While at this stage no cases are yet to be heard in front of the New Judges under the Regulations, they mark an important step in the continued development of the Bahrain legal system. This is important not just for Bahraini companies but also international companies looking to invest in Bahrain by way of opening branch companies or stand-alone limited liability companies as it will help to drive confidence in domestic legal proceedings. It also gears the drivers for inward and outward investment. Investors, funders and the like must have complete confidence in any jurisdiction’s judicial capability as a gatekeeper to safeguarding business and investments. These developments will create that unique confidence in the Bahrain market and in its judicial system.

What impact this has on parties choosing to refer matters to the BCDR Court over arbitration is yet to be seen but will no doubt form a key consideration of contract drafters moving forward as well as formulating underlying strategies as to dispute avoidance, use of ADR and dispute resolution generally.

This article has been published exclusively by The MENA Business Law Review. To read the full article, please click here: A New Era - English Language Litigation in the Kingdom of Bahrain..pdf

TOP