BAHRAIN Law and Practice Contributed by: Noor Al Rayes, Bradley Price, Mohamed Al Sari and Raghad Al Matrook, Al Tamimi & Company
quantum, rather than re-litigating the question of infringement itself. This gives the Authority a central, quasi-binding role in the civil enforcement process, notwithstanding that the Competition Law does not grant it any formal right to intervene or file observations directly in the civil proceedings. A claimant is accordingly dependent on first obtaining a favourable resolution from the Author - ity, or a ruling from the Appeal Tribunal or Court of Cassation, before its civil claim becomes admissible. Decisions of foreign competition authorities have no binding, presumptive or admissibility effect before Bahraini courts, in contrast to the effect given to Authority resolutions under Article (52)(2). They may, at most, be introduced as persuasive comparative material or expert evidence, but a Bahraini court will not treat a foreign infringement finding as determina - tive of, or as a substitute for, an Authority resolution under the Competition Law. 2.4 Proof As explained in 2.3 Impact of Competition Authori- ties , because the civil court is required to adopt the Competition Authority’s (or Appeal Tribunal’s) finding on whether a violation occurred, the claimant’s bur - den of proof in a private damages claim is, in prac - tice, generally confined to establishing that it suffered actual loss and that a causal link exists between the established violation and that loss, together with the quantum of recoverable damages. This differs from an ordinary tort claim, where the claimant would addition - ally have to prove the underlying wrongful act itself. The Competition Law does not otherwise create statu - tory presumptions of loss, causation, or quantum in the claimant’s favour, and there is no reversal of the burden of proof on those elements. The applicable standard of proof on loss, causation and quantum is the ordinary civil standard, requiring the court to be satisfied on the balance of the evidence presented, rather than the higher standard applicable in criminal or administrative sanction proceedings. 2.5 Pass-On Defence The Competition Law does not expressly legislate for a “pass-on” defence, and there is no reported Bahraini
case law addressing the concept. In the absence of a bespoke statutory regime, any pass-on argument would need to be framed by reference to the gen - eral Civil Code principles governing the assessment and quantification of damage, as incorporated by Article (52)(1) of the Competition Law, in particular the requirement that a claimant show it has suffered actual, recoverable loss. On that basis, a defendant seeking to argue that an overcharge was passed on by the claimant to its own customers, thereby reducing or eliminating the claimant’s recoverable loss, would bear the burden of proving that passing-on, consistent with the general principle that a party raising a substantive defence must prove the facts on which it relies. This remains an untested area of Bahraini law. 3. Limitation Periods and the Duration of Litigation 3.1 Statute of Limitations Private antitrust damages claims in Bahrain are sub - ject to the general limitation rules applicable to tor - tious/extra-contractual liability claims under the Civil Code, rather than to any bespoke limitation regime under the Competition Law. Under those general rules, a claim for damages arising from a wrongful act is generally time-barred three years from the date on which the claimant became aware of the damage and of the identity of the person liable, subject to an absolute long-stop limitation period of 15 years from the date of the wrongful act, irrespective of the claim - ant’s knowledge. The Competition Law does not contain provisions suspending or extending the limitation period while a Competition Authority investigation or administra - tive appeal is ongoing. Accordingly, a prospective claimant contemplating a follow-on claim should not assume that limitation is tolled during the Authority’s investigative or enforcement process, and should take care to protect its position, including by issuing pro - ceedings if necessary, before the general limitation period expires.
26 A NTITRUST LI T IGATI O N 2026
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