Litigation proceedings

Pre-action steps

What pre-action steps are required or advised before bringing legal action? (For example, is pre-action mediation mandatory in your jurisdiction?)

There are no pre-action requirements before bringing legal action under Bahraini law, except where notices must be provided to the other party (different claims may have different notice periods or procedures) and where contracts expressly provide for pre-action steps, such as pre-action mediation or attempting to amicably settle a dispute before initiating proceedings.

Competent courts

Does your jurisdiction have a specialist court or other arrangements to hear technology disputes? Are there specialist judges for technology cases?

Bahrain does not have a specialist court to hear technology disputes nor specialist judges as cases are heard in the regular civil courts. However, courts may appoint experts to deal with specialist matters.

Procedural rules

What procedural rules tend to apply to technology disputes?

Technology disputes are dealt with in the same manner as other commercial or civil disputes.

There are several laws that govern these disputes; they include but are not limited to the following:

  • Legislative Decree No. 12 of 1971 on the Issuance of the Civil and Commercial Procedural Law;
  • Legislative Decree No. 14 of the 1996 Promulgating the Law of Evidence in Civil and Commercial Matters (the Bahraini Law of Evidence);
  • Legislative Decree No. 19 of 2001 on the Issuance of the Civil Law (the Civil Code);
  • Legislative Decree No. 20 of 2009 with respect to the Bahrain Chamber for Economic, Financial and Investment Dispute Resolution (BCDR);
  • Resolution No. 65 of 2009 with Respect to the Procedures of the BCDR;
  • Legislative Decree No. 9 of 2015 Promulgating the Arbitration Law; and
  • Ministerial Decision No. 62 of 2018 with Respect to the Case Management Procedures.
Evidence

What rules and standard practices govern the collection and submission of evidence in your jurisdiction (eg, discovery/disclosure obligations or obligations to preserve relevant documents)?

Bahraini law does not recognise the concept of disclosure the same way common law systems do. Parties are required to submit all documents (and expert reports) they consider to be relevant with their submissions. Requests for specific disclosure can be made.

There are various statutory provisions that govern the collection and submission of evidence but parties should ensure that they adhere to the Bahraini Law of Evidence.

Courts and arbitral tribunals have broad discretion regarding how evidence is obtained and what manner of evidence is acceptable, including the power to determine the admissibility, relevance, materiality and weight of any evidence. 

Privilege

What evidence is protected by privilege in your jurisdiction? Do any special issues surrounding privilege arise in relation to technology disputes?

The concept of privilege and disclosure are not expressly recognised by Bahraini statute. However, article 66 of the Bahraini Law of Evidence, for instance, states that a public sector employee may not testify in relation to information that was not disclosed through legal means during his or her employment and which he or she is not authorised to disclose by the competent authority, unless this has been requested by the court or one of the litigants in the proceedings.

Article 67 of the Bahraini Law of Evidence also recognises a concept similar to legal professional privilege in which it states that lawyers, agents, physicians, auditors or others may not disclose information that they have obtained during the course of their work, unless this information was revealed with the aim of committing a misdemeanour or felony.

Protection of confidential information

How else can confidential information be protected during litigation in your jurisdiction?

There are several laws that govern confidentiality and data protection, such as Law No. 30 of 2018 Promulgating Personal Data Protection Law, which recently came into effect as the main data protection law in Bahrain and Law No. 7 of 2003 on Trade Secrets.

However, courts may, in certain situations, request parties to disclose information that may be deemed confidential, such as information that is covered by non-disclosure agreements.

Proceedings before the commercial courts and the BCDR are essentially public. Similarly, the Bahraini Arbitration Law contains no express provision regarding the confidentiality of arbitral proceedings. This is a matter for the court or the parties to agree on. 

In practice, confidentiality is often expressly prescribed in the relevant contracts. In cases where confidentiality has not been expressly provided for in the contract, the courts may decide to hear the case privately depending on sensitivity. Many institutional arbitration rules also recognise at least a partial principle of confidentiality in international arbitrations. 

For example, the BCDR Arbitration Rules 2017 state that an award may be made public only with the consent of all parties and that, unless otherwise agreed by the parties, all matters concerning the arbitration shall be kept confidential by the tribunal, the BCDR and any experts (but not, interestingly, the parties themselves). 

Additionally, the majority of cases in the Bahrain courts are submitted in writing and the judgments are only available to the parties themselves or any third parties who can demonstrate that they are indeed ‘interested parties’ to that litigation. In short, a non-confidential case in Bahrain is significantly more protected than its counterpart in the United Kingdom, for instance.

Expert witnesses

Can expert witnesses be used in your jurisdiction? If so, how are they appointed and what is their role in the proceedings?

Expert witnesses can be used in litigation proceedings in Bahrain. One of three experts are usually appointed by the court, however the parties may also both agree on the expert. The appointed expert is usually listed on the roster of experts. The court would also include a detailed statement of the expert’s task and the urgent matters he or she may deal with. The expert must then assess the claim and its merits and provide a report setting out the results of his or her tasks, his or her opinion and the grounds for such.

An arbitral tribunal may also appoint one or more experts to report on specific issues to be determined by the tribunal, and may require a party to give the expert any information or documents that it considers relevant to the issues pertaining to the arbitration.

The parties may also appoint their own experts with their reports accompanying their submissions to the court or arbitral tribunal.

Time frame

What is the typical time frame for litigation proceedings involving technology disputes?

Since there are no specific courts to hear technology disputes, litigation proceedings in Bahrain often take months. However, this would also depend on the court, for instance, the Court of Cassation waiting list for the case to be listed is far longer than that of the High Court but the active hearing element and time to pass down its judgment once the case has been listed is far shorter.

As a rule of thumb, parties are looking at 12–18 months for the initial phase of a dispute and a further 12–18 months for listing at the Court of Cassation.

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20 July 2020