1 Legal framework

1.1 What system of jurisprudence applies in your jurisdiction? What implications does this have for litigation?

Bahrain adopts a dual legal system comprising of civil courts and Sharia Courts which govern personal status matters for Muslims.

As Bahrain adopts a civil law as opposed to a common law system, decisions of higher courts are not binding on lower courts, although decisions of the Bahraini Court of Cassation, the highest court in the Kingdom, generally provide sound authority on legal principles invoked before it.

1.2 What rules govern litigation in your jurisdiction?

The principal legislation which governs litigation in Bahrain is Decree Law No. 12/1971 on the Issuance of the Civil and Commercial Procedures Law ("CCPL").

The CCPL addresses many key areas of the litigation process, including the initiation and conduct of proceedings, the appeals and challenge process, stay of proceedings and the discontinuance of actions. Decree Law No. 14/1996 on the Issuance of the Law of Evidence in Civil and Commercial Matters (the "Law of Evidence") is another core piece of legislation which addresses the use of various forms of evidence including written evidence, witness testimonies and expert evidence among other matters.

The Court of Cassation Law (Decree Law No. 8/1989) prescribes rules on the procedures observed for cases heard before the court and the grounds under which Challenges may be filed before the Court of Cassation.

1.3 Do any special regimes apply to specific claims?

Labour claims are also subject to the provisions of the Labour Law for the Private Sector (Law No. 36/2012) in that cases are initially heard before the Labour Case Management Division prior to being referred to the High Labour Courts.

Cases falling under the jurisdiction of the Bahrain Chamber for Dispute Resolution (see 2.2 below) are subject to a separate regime governed by Decree Law No. 30/2009 and its implementing regulations.

1.4 Which bilateral and multilateral instruments have relevance to litigation in your jurisdiction?

The Riyadh Arab Convention on Judicial Cooperation (1983) ("Riyadh Convention") was ratified in Bahrain by virtue of Decree Law No. 41/1999. The Riyadh Convention covers instances where signatory states may seek judicial assistance, facilitate the transport of indicted and convicted individuals as well as the recognition and enforcement of foreign final judgments. Similar bilateral treaties have been signed and ratified by Bahrain in relation to Egypt, Morocco and India.

2 Judicial structure

2.1 What courts exist in your jurisdiction and how are they structured?

The civil court system is organised as follows:

  • The Court of Cassation, the highest court in Bahrain, consists of six circuits.
  • The High Civil Court of Appeal consists of six circuits.
  • The Higher Civil Courts, comprising ten circuits, view civil cases with a claim value exceeding BHD5,000, with the exception of the Seventh Circuit High Civil Court which has jurisdiction over bankruptcy and reorganisation claims, and the Ninth Circuit High Civil Court which has jurisdiction over property disputes under the Real Estate Lease Law (Law No. 27/2014).
  • The Lower Civil Courts, comprising eight circuits, view cases with a claim value below BHD5,000, as well as cases involving the Survey and Land Registration Bureau and Sorting Authority.
  • The High Labour Courts, comprising two circuits, view employment claims after they have been referred from the Labour Case Management Division.

2.2 What specialist courts or tribunals exist in your jurisdiction?

The Bahrain Chamber for Dispute Resolution ("BCDR"), established under Decree Law No. 30/2009, has jurisdiction over cases falling originally within the remit of the Bahraini civil courts where the claim amount exceeds BHD500,000 (US$ 1.3m), and at least one party is a financial institution licensed by the Central Bank of Bahrain, and as of 1 October 2021, where the parties are commercial companies licensed under Decree Law No. 21/2001 on the Issuance of the Commercial Companies Law.

3 Pre-litigation

3.1 What formalities apply before litigation can be commenced in your jurisdiction?

This depends on the nature of the claim, although not many are prescribed.

Before a claim is initiated for the eviction of leased premises, for instance, the landlord ought to send a tenant in default a registered letter with acknowledgement of receipt requesting payment of rent and/or declaring the termination of the lease agreement.

For claims generally, the claimant must submit a Statement of Claim outlining the parties' key details, the facts, evidence and merits of the actions as well as any orders submitted to the court including any specified amount being claimed. Upon submitting the Statement of Claim, the claimant is required to settle the applicable court fee based on the claim amount.

Parties must hold a valid power of attorney for legal representation before all courts of Bahrain which is notarised and executed before a notary.

3.2 Do any pre-action protocols or similar rules apply prior to the commencement of litigation? What are the consequences of non-compliance?

No pre-action protocols are set in the litigation regime in Bahrain.

3.3 What other factors should a party consider before commencing litigation in your jurisdiction?

The courts in Bahrain award only nominal legal fees at the conclusion of the proceedings. This means that in Bahrain, the losing party to a claim is generally not obliged to settle the legal fees of the winning party. The court fee paid by the claimant is recoverable from the other party when the claimant succeeds in the claim.

Moreover, as Arabic is the official language of the courts of Bahrain, parties ought to consider that all evidence to be exhibited to the court in a statement of claim and court memorandums should be accompanied by a certified Arabic translation. This necessitates the translation of all documentation to be shown to the court to Arabic, and where this is substantial in certain claims, this may amount to further costs to the litigation process which may not be recoverable.

4 Commencing litigation

4.1 What rules on limitations periods apply in your jurisdiction?

Decree Law No. 19/2001 on the Issuance of the Civil Law (the "Civil Code") prescribes a set of limitation periods depending on the cause of action. Most claims founded in contract and tort are subject to a limitation period of three years, with a final catch-all limitation period of fifteen years. This warrants additional consideration.

Claims for the voidance of contracts are subject to a catch-all limitation period of fifteen years from the date of concluding the contract, however where voidance is sought as a result of one party's fraud, mistake or duress, the action is time-barred if not initiated within three years of discovering the mistake or fraud, or from the date the duress is ceased.

Tortious claims, including compensation for unjust enrichment, are subject to a limitation period of three years from the date the damage is realized by the claimant.

However, commercial claims between merchants or commercial companies are subject to a specific ten-year limitation period as prescribed by Article 87 of the Law of Commerce (Decree Law No. 7/1987).

Employment claims where an employee seeks compensation for unjust termination are subject to a thirty-day limitation period from the date of termination. However, a claim for unpaid wages is subject to a limitation period of five years from the date the wages are due.

4.2 What rules on jurisdiction and how this is determined apply in your jurisdiction?

The jurisdiction of the Bahraini courts is addressed by the CCPL under Articles 14-20. Bahraini courts have jurisdiction to hear cases over matters concerning non-Bahraini residents where: (i) the person has elected domicile in Bahrain, (ii) if the action concerns an asset in Bahrain or any obligation arising or performed or to be performed there, or to bankruptcy declared therein, (iii) if the action relates to any matter of personal status and the plaintiff is a national or an alien having domicile in Bahrain, where the defendant has no known domicile abroad, or if Bahraini law is applicable to the action, (iv) if the action is in respect of the kinship of any child resident in Bahrain or stripping custody over himself or the limitation, suspension or revocation thereof, and (v) if one of the defendants has domicile or place of residence in Bahrain. Finally, Bahraini courts may also adjudicate in the action even though it does not fall within their jurisdiction as outlined above where the litigant explicitly or implicitly accepts its jurisdiction and may order provisional and precautionary measures in Bahrain even where the courts do not have jurisdiction to hear the original claim.

4.3 Are class actions permitted in your jurisdiction?

Class actions are permitted in the courts of Bahrain where there are multiple claimants under one action. The CCPL also allows for the joinder of more claimants and/or defendants, although generally, this would need to be done within the time limits prescribed by the court. Class actions are recognized for various types of claims and are not limited to contractual or tortious liability claims.

4.4 What are the formal requirements for commencing litigation?

To commence with litigation, it is required from the relevant party to submit the statement of claim online through the Bahrain portal (www.services.bahrain.bh) along with the relevant documents supporting its claim.

4.5 What are the procedural and substantive requirements for commencing litigation?

After submitting the statement of claim, the relevant party will be required to pay a court fee calculated on the value of the claim being brought forth as part of a procedural requirement. A statement of claim shall contain details of the parties and a summary of the facts of the case with the indication of the loss suffered and the remedy being sought (for example, damages) alongside supporting documents.

4.6 Are interim remedies available in your jurisdiction? If so, how are they obtained?

There are interim measures in our jurisdiction, which can be applied before, during and after judgment has been rendered. The law does not set out timeframes for applying for interim measures, nor does it set out the deadlines for the competent courts to issue rulings on such application. Such measures include precautionary and provisional measures, ban on travel, interim injunctions, and attachment of assets.

4.7 Under what circumstances must security for costs be provided?

Security for costs is not recognized in the jurisdiction of Bahrain.

5 Disclosure

5.1 What rules apply to disclosure in your jurisdiction? Do any exceptions apply to certain types of documents?

There is no principle of disclosure in the Kingdom of Bahrain similar to the common law jurisdiction. However, the plaintiff shall enclose copies of supporting documents with the statement of claim in a list attached thereof, together with an explanatory memorandum. The defendant shall lodge the memorandum of his defence online through the Bahrain Portal accompanied by his supporting documents at least three (3) days before the session fixed for hearing the case. If the plaintiff or the defendant produces a document at their first session which could have been produced within the time limit given prior to the session, the court shall accept it if such action does not have a consequence of adjourning the hearing. If it resulted in adjourning the case, the court shall rule the imposition of a fine.

5.2 What rules on third-party disclosure apply in your jurisdiction?

The court may, during the course of the lawsuit, even before the Court of Appeal, authorise the joinder of a third party, in order to compel said party to submit a document that is in his possession, or an official copy thereof, as the case may be. It shall be presented to the one who claims a right related thereto. However, the judge may refuse to issue the order to present the documents in the event the owner thereof has a legitimate interest in refraining from presenting it.

5.3 What rules on privilege apply in your jurisdiction? Does attorney-client privilege extend to in-house counsel?

Testimony of witnesses may be established as evidence in the absence of an agreement or any provisions to the contrary, excluding commercial matters, the existence or extinction of a legal act which value does not exceed BHD 500, unless the increase of the value was only the result of the addition of the accessories to the principle. The legal system in Bahrain prevents certain people from disclosing information such as children who have not attained the age of fifteen years, employees and persons in charge of a public service even after quitting their job, lawyers, agents, physicians, auditors or others who became aware of any fact or information during their course of their work or in their capacity even after the end of their service, unless said information was revealed thereto with the aim of committing a misdemeanour or felony, and spouses unless they have consent of one another.

Such privilege extends to legal counsels working in-house even after the end of their service or demise of their capacity.

5.4 How have technological advances affected the disclosure process in your jurisdiction?

After the COVID-19 pandemic, all relevant documents supporting a statement of claim gets submitted online through the Bahrain Portal (www.services.bahrain.bh) instead of the plaintiff physically submitting it through the Case Registration Department. Such change eases the process of disclosing documents.

5.5 What specific considerations should be borne in mind during the disclosure process, for both plaintiff and defendant?

It is of great importance to consider that there are two types of documents known as official and customary documents. The official documents are those in which a public servant or a person entrusted with a public service proves the acts carried out thereby or received from the concerned persons, in accordance with the legal conditions and within the scope of this authority and competence.

In the event the original official document exists, any official handwritten copy or photocopy thereof shall be considered as evidence to the extent that said copy is identical to the original document. A copy is deemed identical to the original, unless contested by one of the parties in which case the copy shall be compared with the original document in the presence of the plaintiff and defendant.

A customary document shall be deemed to be issued by the person who signed it, unless he expressly denies the handwriting, signature, seal or fingerprint attributed thereto. Signed letters shall have the same value as a customary document in terms of evidence. Moreover, commercial and household books shall be enforceable to the extent available under the provisions of the Law of Evidence.

6 Evidence

6.1 What types of evidence are permissible in your jurisdiction?

Under the Law of Evidence, parties may rely upon written evidence, including official documents, witness testimonies and expert evidence. Witness evidence may be relied upon in labour claims and regular civil claims upon request of the party seeking to rely on such evidence.

6.2 What rules apply to expert evidence in your jurisdiction? What specific considerations should be borne in mind when preparing and presenting expert evidence?

Chapter Nine of the Law of Evidence governs parties' use of expert evidence. Following the amendment to the Law of Evidence by virtue of Decree Law No. 28/2021, parties may rely upon expert evidence on their own initiative without awaiting the court's approval. Claimants are now able to obtain expert evidence to support their claim before the Statement of Claim is registered, though this evidence must be exhibited upon filing the claim.

A party who has instructed an expert is required to submit a model contract used to specify the expert's duties generally as well as his role and scope of work for the proceedings. The party is also required to submit a short form completed by the expert declaring his independence and the absence of any factors which may prejudice his impartiality and the performance of his duties. These are both readily available on the Ministry of Justice website.

6.3 What other factors should be borne in mind when preparing and presenting evidence in your jurisdiction?

All evidence relied upon before the courts of Bahrain, including oral evidence, must be in the Arabic language. This requires litigating parties to produce the required evidence to be accompanied by a certified Arabic translation in addition to the original language. Oral evidence given in court in languages apart from Arabic must be done through a certified translator. Both of these considerations may increase the overall costs incurred in the litigation process. If a party wishes to rely upon evidence that cannot be accompanied by an Arabic translation by the time of the hearing, that party may nonetheless present the evidence exhibited with the memorandum and may request additional time to present the required translations by the next adjourned hearing, which is subject to the court's discretion.

7 Court proceedings

7.1 What case management powers do the courts have in your jurisdiction?

A case management office is established in the Ministry of Justice in Bahrain to prepare and manage the case for pleading. The court has the power to order the stay of proceedings, issue judgments, delay litigation, order precautionary and provisional measures, order a travel ban, impose upon prevailing party to pay all or part of the expenses, and determine the expenses and fees due to attorneys and order the payment thereof.

7.2 Are court proceedings in your jurisdiction public or private? If the former, are any options available to the parties to keep the proceedings or related information confidential?

Court proceedings in Bahrain are held publicly unless the court decides on its own or at the request of the litigants, to be held privately in order to preserve public order or to observe morals or the family's inviolability.

7.3 How is the applicable law determined? What happens in the event of a conflict of laws?

The legislative texts shall apply to all matters governing the provisions under the Civil Code, which applies without prejudice to specific legislation. In the absence of a provision, the judge shall determine the matter in accordance with custom, and in the absence of custom, it will be in accordance with the provisions of the Islamic Shariaa that suit the conditions and circumstances of the country. In the absence of such principles, the Judge shall issue his decision in accordance with the principles of natural justice and the rules of equity.

The Court of Cassation has repeatedly confirmed that Bahraini law does not preclude the possibility for foreign laws to be applicable to a dispute that is heard before the courts. Law No. 6/2015 on the Conflict of Laws in Civil and Commercial Matters stipulates that parties to a dispute may submit provisions of the applicable law, and where no provisions were submitted, Bahraini law may be considered as the applicable law to the subject-matter of the dispute, provided said provisions or submissions do not contravene public order or morals.

7.4 What rules apply to the joinder of third parties?

A litigant may introduce into the case any party with whom he has a legitimate dispute therein at the time of filing it. They shall be served a notice and summoned to court following the conditions observed in the law. Wherever possible, a single ruling shall be passed on the merits of the engagement of a third party in the proceedings and the original case; otherwise, the court shall adjudicate the merits of the claim for introducing the third party after issuing a judgment in the original case.

7.5 How do the court proceedings unfold in your jurisdiction? What specific considerations should be borne in mind at each stage of the process, for both plaintiff and defendant?

Court proceedings begins as soon as the plaintiff files a statement of claim at court and pays the required court fee. The defendant shall respond with its defence prior to the hearing by three (3) days. The plaintiff shall have the opportunity to reply to the defence. Throughout the process therein, the court will continue having its hearing sessions disclosing all evidence along with testimonies of witnesses. After that, a judgment will be given from the court finalizing the judge's decision on the case. The final step of the court proceedings will be the enforcement of the judgment.

7.6 What is the typical timeframe for the court proceedings?

There is no timeframe for the court proceedings as it is dependent on the complexity of the claim. The simplest cases such as eviction and rent claims take the shortest time. Meanwhile, other cases such as bankruptcy claims may take years for a court to finalize a decision.

8 Judgment and remedies

8.1 What types of judgments, orders and other remedies are available in your jurisdiction?

A party can obtain several different domestic judgments through the courts of the Kingdom of Bahrain including default judgments, summary judgments, interim relief measures, and attachment orders. The court will allow for default judgments in circumstances where a defendant has been summoned but fails to appear before the court without a valid reason. This is determined by the judge on a case-by-case basis, as the laws in the Kingdom of Bahrain do not provide a list of what these reasons may be. A summary judgement is available based on the judge's discretion. Interim relief measures may be implemented upon application to the relevant courts. Moreover, a domestic judgment may be enforced by an order for the attachment of assets as well as an order for assets to be sold having a valid reason for doing so.

9 Appeals

9.1 On what grounds may a judgment be appealed in your jurisdiction?

A judgment may be appealed to the High Civil Court of Appeal, or subsequently to the Bahraini Court of Cassation, on the grounds of a nullity of the judgment due to: (i) a violation, misapplication or misinterpretation of the law, (ii) a material disregard of facts and documents, (iii) ungrounded reasoning behind the judgment (the latter two occur where the judgment does not adequately ground the decision on the evidence presented before the court, or where the judge has an incorrect understanding of the facts).

9.2 What is the appeals process? Is the judgment stayed while the appeal is pending?

Judgments rendered by the Court of First Instance may be appealed to the High Civil Court of Appeal through a Statement of Appeal submitted alongside payment of the court fee (if applicable) within forty-five (45) days of issuance of the judgment. Judgments from the High Civil Court of Appeal may be challenged before the Court of Cassation also within forty-five days of issuance of the appealed judgment.

An appeal or challenge does not in itself stay the enforcement of a judgment. Parties may submit an application to stay the enforcement of the judgment, and this is subject to the discretion of the courts. Moreover, when a judgment is being challenged before the Bahraini Court of Cassation, a fixed court fee of Bahraini Dinars One Hundred Fifty Two (BHD152/-) is payable to the Ministry of Justice. However, a greater sum is payable where the challenge is in relation to a judgment rendered by the BCDR.

9.3 What specific considerations should be borne in mind during the appeals process, for both plaintiff and defendant?

Where a judgment is being appealed or challenged and the defendant applies for the stay of enforcement of a judgment, the courts are generally cautious in accepting said applications, particularly where they concern employment claims and the employer is seeking a stay of enforcement. For claims more generally, the applicant must demonstrate to the court that real and imminent harm may occur due to the enforcement of the appealed judgment.

Following a Challenge before the Court of Cassation, the defendant has a period of ten (10) days from the date of registration of the Challenge to submit a Memorandum of Response to the plaintiff's Statement of Cassation, and the plaintiff may also submit a memorandum within ten (10) days of the defendant's Memorandum of Response.

10 Enforcement

10.1 How are domestic judgments enforced in your jurisdiction?

A party seeking to enforce a domestic judgement would need to notify the debtor with a copy of the judgement at least seven days prior to making a formal application for enforcement, thereby providing the debtor an opportunity to pay his debt. In the absence of payment, the creditor shall file an application electronically though the website of the Information and eGovernment authority (www.iga.gov.bh) to oblige the debtor to pay the debt or deliver performance of the obligation. Payment or such performance must be delivered within one week from the submission of the application. Where a debtor fails to pay his/her debt amount subject to the judgment, the Court of Execution will then freeze the debtor's assets up to the value of the judgement debt. If there are no liquid assets, the court will seize property and sell it at auction to settle the judgment debt.

In case the debtor fails to deliver a specific performance within ten days from the date of notification, the creditor can request the Court of Execution to either impose a penalty on the debtor, or to force him/her to perform the obligation, unless the debtor can prove that specific performance is not possible.

10.2 How are foreign judgments enforced in your jurisdiction?

Enforcing foreign judgments in Bahrain is not a complex process, provided that the party has access to the original documents and can have it legalised or apostilled. The courts in the Kingdom of Bahrain will enforce a foreign judgment without requiring a prior recognition proceeding if the judgment originates from a country that is a signatory to the various reciprocal recognition treaties (The Hague Convention for the Pacific Settlement of International Disputes, The Convention on the Settlement of Investment Disputes between States and Nationals of other States, The Riyadh Arab Agreement for Judicial Cooperation, The Gulf Cooperation Council Convention for the Execution of Judgments, Delegations and Judicial Notification, etc...). When a reciprocal recognition is not established via a treaty between the Kingdom of Bahrain and the foreign country, the foreign judgments may be recognized following an application to the High Civil Court and disclosing the payment of the prescribed fees. In order to enforce the judgment, the court must assure that: (i) they are non-competent to hear the dispute in which the case has been issued on and that the foreign courts that passed such judgements are competent in accordance with the international rules of jurisdiction prescribed in the laws thereof; (ii) the litigants in the case were summoned and properly represented; (iii) the judgement or order is final; (iv) the judgement issued in the foreign country does not conflict with a judgement or order previously passed by the courts of the Kingdom and does not breach its public order nor the morality.

10.3 What specific considerations should be borne in mind during the enforcement process, for both plaintiff and defendant?

With regards to a foreign judgment, all judgments must be final to be enforced by the Bahraini courts. There are no specific provisions regarding the limitation period for enforcing such judgments however under the Bahraini laws, all civil claims are subject to the statute of limitations, which prescribes a general limitation period of fifteen (15) years unless otherwise provided. Commercial claims will be barred after ten (10) years from the date of due performance of the commercial obligation.

11 Costs, fees and funding

11.1 What costs and fees are incurred when litigating in your jurisdiction?

The costs of litigation in Bahrain can be divided into court fees and lawyer's fees. Court fees include claim registration fees, the fees paid when submitting a claim to the competent court, and expert fees which are subject to the courts discretion and vary on a case-by-case basis. The competent court has the authority to award costs, including lawyer's fees, to be paid by the unsuccessful party.

11.2 Are contingency fees and similar arrangements permitted in your jurisdiction?

Contingency fees are not recognised in the Kingdom of Bahrain.

11.3 Is third-party funding permitted in your jurisdiction?

Third-party funding is not recognised in the Kingdom of Bahrain.

11.4 What other strategies should parties consider to mitigate the costs of litigation?

There are no strategies to mitigate the costs of litigation, as they are implemented by the court on a case-by-case basis. Court fees regarding registration is fixed.

12 Trends and predictions

12.1 How would you describe the current litigation landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

The Kingdom of Bahrain is considered to be a pioneer with its legal system. The recent issuance of various decrees and regulations paves the way for other Middle East regions to follow and will directly impact the way in which cases will be heard before the Bahraini courts. According to Ministerial Resolution No. 117/2021, domestic litigation can now be heard and determined in English which may increase the opportunity for a dispute to be executed before the courts rather than arbitration, with further guidance and regulation anticipated in this respect. A recent legislative proposal is the establishment of financial courts which is underway and under consultation by the government and judicial bodies.

13 Tips and traps

13.1 What would be your recommendations to parties facing litigation in your jurisdiction and what potential pitfalls would you highlight?

Litigating parties in Bahrain generally do not recover legal fees incurred in a case, including where the case proceeds to the Appeal and Cassation stages. It is therefore essential to keep costs to all which is necessary for the action.

If a claimant is pursuing an unspecified claim (e.g. common in compensation claims) as opposed to a specified debt claim, a court fee is nonetheless payable to the Ministry of Justice based on the claim amount as specified by the claimant's orders at the conclusion of the Statement of Claim. It is therefore strategic for the claimant to specify a "provisional" compensation figure pending the assessment or determination of the quantum of damages by an expert. This would reduce the applicable court fee, particularly where large sums are sought by the claimant.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.