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Arbitration agreements

Validity
What are the validity requirements for an arbitration agreement?

Under Bahraini law, an arbitration agreement is an agreement between the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

An arbitration agreement may be in the form of an arbitration clause in a contract or a separate agreement.

To be valid, an arbitration agreement must be in writing. This requirement will be satisfied if its content is recorded in any form, whether the arbitration agreement or contract has been concluded orally, by conduct or any other means.

An arbitration agreement may be recorded in an electronic communication if the information contained therein is accessible for subsequent reference. Further, a reference in a contract to any document containing an arbitration clause constitutes a written arbitration agreement, provided that the reference is such as to make that clause part of the contract.

Enforcement of agreements
How are arbitration agreements enforced in your jurisdiction? What is the attitude of the national courts towards arbitration agreements?

Arbitration agreements may be enforced in the same manner as general contracts. The national courts will recognise and respect the choice of parties to contracts or disputes to enter into arbitration.

Consolidation
Can an arbitral tribunal with its seat in your jurisdiction consolidate separate arbitral proceedings under one or more contracts, and, if so, in what circumstances?

Bahraini law does not address the consolidation of arbitral proceedings. However, many institutional arbitration rules permit tribunals to consolidate separate arbitral proceedings – for example:

  • the London Court of International Arbitration Rules 2014;
  • the International Chamber of Commerce Rules 2012; and
  • the American Arbitration Association/International Centre for Dispute Resolution Rules 2014.

In general, for a tribunal to consolidate proceedings, either all of the parties must agree to consolidation or, in certain circumstances, the tribunal may consolidate the proceedings if they arise from the same arbitration agreement or involve the same parties.

Choice of law
How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?

The substantive law will usually be stipulated by the parties to a contract.

Where the substantive law has not been determined or cannot be agreed between the parties, the tribunal will apply the substantive law(s) determined by the conflict of laws rules which it considers applicable.

In all cases, an arbitral tribunal’s decision on the applicable substantive law(s) will be made in accordance with the terms of the contract and will take into account the trade applicable to the context of the dispute.

The arbitral tribunal will decide ex aequo et bono or as amiable compositeur (ie, based on what is fair and just, rather than on the letter of the law) only if the parties have expressly authorised it to do so.

Separability
Are there any provisions on the separability of arbitration agreements?

Yes – an arbitration clause which forms part of a contract will be treated as an agreement independent of the other terms of the contract, and a decision by the arbitral tribunal that a contract is null and void will not entail ipso jure (ie, by operation of law) the invalidity of the arbitration clause.

Multiparty agreements
Are multiparty agreements recognised?

Multiparty agreements are not prohibited under Bahraini law.

Many institutional arbitration rules contain administrative provisions that govern multiparty agreements in arbitral proceedings, particularly in respect of maintaining fairness and equal treatment between the parties (eg, during the appointment of the tribunal). Arbitral rules that include provisions relating to multiparty agreements include the London Court of International Arbitration Rules 2014 and the International Chamber of Commerce Rules 2012.

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