21. Place and language of arbitration
Failing prior agreement of the parties, what is the default mechanism for the place of arbitration and the language of the arbitral proceedings?
The Domestic Arbitration Law does not deal with a default mechanism for the place and language of arbitration but in the absence of agreement Arabic is likely to be the language used and Bahrain will be the place of arbitration.
Articles 20 and 21 of the International Arbitration Law provide that the parties are free to agree on the language used and place of arbitration. In the absence of party agreement on these matters the tribunal has the ability to decide the language to be used and place of the arbitration.
Article 13 of the BCDR Arbitration Rules provides that if the parties disagree as to the place of arbitration, the administrator may initially determine the place of arbitration, subject to the power of the tribunal to determine finally the place of arbitration within 60 days after its constitution.
Article 14 of the BCDR Arbitration Rules provides that if the parties have not agreed otherwise, the language of the arbitration shall be that of the documents containing the arbitration agreement, subject to the power of the tribunal to determine otherwise based upon the contentions of the parties and the circumstances of the arbitration.
Article 6 and 7 of the GCAC rules provide that in the absence of party agreement, the tribunal has the ability to determine the language and place of arbitration.
22. Commencement of arbitration
How are arbitral proceedings initiated?
The Domestic Arbitration Law does not include any specific provision related to the commencement of arbitral proceedings.
Article 22 of the International Arbitration Law provides that unless otherwise agreed by the parties, arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.
Article 2 of the BCDR Arbitration Rules provides that arbitral proceedings are deemed to commence on the date on which the administrator receives the notice of arbitration. Upon receipt of the notice of arbitration, the administrator must communicate with all parties with respect to the arbitration and acknowledge the commencement of the arbitration.
The notice of arbitration must contain a statement of claim including the following:
- a demand that the dispute be referred to arbitration;
- the names, addresses and telephone numbers of the parties;
- a reference to the arbitration clause or agreement that is invoked;
- a reference to any contract in relation to which the dispute arises;
- a description of the claim and an indication of the facts supporting it;
- the relief or remedy sought and the amount claimed; and
- may include proposals as to the means of designating and the number of arbitrators, the place of arbitration and the language of the arbitration.
Is a hearing required and what rules apply?
The Domestic Arbitration Law is silent on the requirement for a hearing and on the rules that apply to such hearings.
The International Arbitration Law gives the parties wide scope to agree on the procedure to be followed by the tribunal in conducting arbitration proceedings, including hearings (article 19(1)).
Where the parties do not determine any rules of a particular arbitral institution to govern the proceedings, the tribunal may conduct the proceedings in such manner as it sees fit (article 19(2)). However, it is bound (by article 18) to treat the parties with equality and to give each party a full opportunity to present its case. As a result, each party must be given reasonable notice of any hearing (though the tribunal may of course proceed with the hearing in that party’s absence provided it considers that it has given the party in question a full opportunity to present its case).
Article 20 of the BCDR Arbitration Rules provides that the tribunal shall give the parties at least 30 days advance notice of the date, time and place of the initial oral hearing.
Article 21 of the GCAC rules provide that the tribunal shall hold, at the request of either party, at any stage of the proceedings, a hearing for oral submissions or for hearing testimony from witnesses or experts. If neither party makes such a request, the tribunal shall have the option either to hold such a hearing or to proceed on the basis of documents alone, provided that at least one hearing has already been held.
By what rules is the arbitral tribunal bound in establishing the facts of the case? What types of evidence are admitted and how is the taking of evidence conducted?
Article 238 of the Domestic Arbitration Law states that the parties must submit all documents and written evidence in their possession or charge, and do all that the tribunal requires of them but is silent (and as such leaves it to the discretion of the parties) as to the meaning of ‘all’. The parties or the tribunal may also file an application with the Court requesting production of any document necessary to the arbitration that is in the possession of ‘others’ or the attendance of a particular witness to give evidence before the arbitration.
Article 238 also states that the tribunal may require that witnesses take an oath or make a formal declaration of truth. Anyone giving false evidence concerning an ‘essential issue’ before a tribunal could be held to have committed perjury and punished accordingly.
In international arbitrations, subject to any rules of procedure agreed by the parties, the tribunal has discretion to conduct the proceedings in the manner it considers appropriate (article 19 of the International Arbitration Law).
The BCDR rules (article 19) state that the claiming party has the burden of proving the facts relied on to support its claims. The tribunal may order the parties to deliver a summary of the documents and other evidence which the party intends to rely upon and may order the parties to produce other documents as necessary.
Article 22 of the GCAC rules states that with regard to witness testimony, the party upon which the burden of proof falls, shall notify the tribunal and the other parties at least seven days before the hearing date and provide the names and addresses of witnesses, the matters on which they will testify and the language to be used for the testimony. Furthermore, article 24 refers to the ability of the tribunal at any stage to request the parties to produce additional documents or evidence (than already submitted) or to conduct an inspection of any premises that are the subject of the dispute and make investigations if it deems necessary.
25. Court involvement
In what instances can the arbitral tribunal request assistance from a court and in what instances may courts intervene?
The Domestic Arbitration Law (article 236) states that the parties (in consequence of a valid arbitration clause) relinquish their rights of recourse to the Courts to examine the dispute. As a result, Bahraini courts are not permitted to intervene in domestic arbitrations. However, the tribunal may request assistance from a court in relation to witness testimony and disclosure of documents (see the answer to question 24).
Court assistance in domestic arbitrations is limited by article 235 of the Domestic Arbitration Law to:
- production of documents in the possession of ‘others’ which are ‘necessary’;
- the sending of notices requiring a witness to attend to give evidence before the tribunal;
- instances where the parties have not agreed on the constitution of the tribunal, or if one or more of the agreed arbitrators has abstained, withdrawn or been dismissed, or an impediment has arisen to prevent him from acting. In such instances the court that would have had jurisdiction to examine the dispute (in the absence of a valid arbitration agreement) shall appoint the necessary arbitrators at the request of the party concerned with expediting the matter, and this decision may not be challenged or appealed.
Similarly, article 5 of the International Arbitration Law also prevents the courts from intervening in international arbitrations. However, the court may assist in:
- ordering disclosure of relevant documents or assisting with witness evidence at the request of the tribunal (article 27);
- appointing arbitrators where there is no party agreement or where the tribunal fail to do so (in instances specified in article 6);
- challenges to the suitability of arbitrators (in instances specified in article 6);
- issuing a ruling on jurisdiction (in instances specified in article 6);
- annulling an award (in accordance with the instances described in article 34).
Is confidentiality ensured?
The Domestic Arbitration Law does not contain any specific provisions on the confidentiality of arbitration proceedings.
By virtue of article 31 of the International Arbitration Law, publication of arbitration awards (or partial awards) is only permitted when the parties agree.
Hearings held before the BCDR and GCAC are private and this privacy extends to the information disclosed by the parties or by witnesses as well as all matters relating to the award. Pursuant to article 34 of the BCDR regulation, the BCDR administrator may publish or otherwise make publicly available selected awards, decisions and rulings that have been edited to conceal the names of the parties and other identifying details or that have been made publicly available in the course of the enforcement or otherwise unless otherwise agreed by the parties. Confidential information disclosed during proceedings by the parties or by witnesses is kept private and confidential, unless otherwise agreed by the parties or required by the applicable law.