BAHRAIN Law and Practice Contributed by: Noor Al Rayes, Bradley Price, Mohamed Al Sari and Raghad Al Matrook, Al Tamimi & Company
ciently, making ADR a highly attractive route for busi - nesses seeking flexibility, neutrality and confidentiality in antitrust and competition-related matters. While ADR is fundamentally rooted in party consent and is broadly voluntary for standard private antitrust claims, there are specific circumstances where alter - native dispute mechanisms operate under a manda - tory framework. Most notably, the BCDR exercises mandatory jurisdiction over certain high-value com - mercial disputes where the claim exceeds USD1.3 million (approximately BHD500,000) and involves licensed financial institutions or specific commercial companies. If a private antitrust damages claim falls within these precise financial and corporate thresh - olds, the dispute is automatically channelled through the BCDR’s specialised tribunal process rather than the general civil courts. Third-party litigation funding is gaining traction in Bah - rain’s legal market. Because it is not explicitly prohib - ited by statute, funding arrangements are governed by the general principles of freedom of contract. Pro - vided the agreement does not violate public policy or breach professional conduct rules for lawyers, funders can finance complex antitrust claims. 11.2 Costs Regarding litigation costs, the standard rule applies: the losing party pays the costs of the successful party. However, these awards are highly restrictive. Courts typically order the payment of official court fees, expert expenses, and a statutorily fixed, nomi - nal amount for attorney’s fees, stopping well short of covering a party’s actual indemnity costs. To protect defendants against impecunious or foreign claimants with no local assets, the court can grant an order for security for costs, usually satisfied via a cash deposit into the court treasury or an unconditional local bank guarantee. In Bahrain, the general rule is that costs follow the event, meaning that the unsuccessful party may be ordered to pay the costs of the proceedings. The court 11. Funding and Costs 11.1 Litigation Funding
has discretion in determining the costs to be awarded, having regard to the circumstances of the case and the applicable rules on court fees and expenses. The successful party should not, however, assume that all legal fees incurred will automatically be recoverable. A party may apply to the court for security for costs, although such orders are relatively uncommon in ordi - nary court proceedings and are discretionary. The court may order security where there is a genuine risk that the applicant would be unable to recover costs if successful – for example, where the opposing party is insolvent, has no assets in Bahrain, is resident abroad or there are other circumstances indicating a real risk of non-payment. The existence of third-party funding, by itself, would not ordinarily be sufficient. The amount and form of security are determined by the court on a case-by-case basis, generally by ref - erence to the costs that are reasonably likely to be recoverable rather than the full value of the claim. In practice, security may be provided by a cash deposit, bank guarantee or another form of security acceptable to the court. The court will determine the amount and the method of provision, and the order may require the security to be paid or lodged within a specified period. Bahrain offers a robust, multi-tiered appeals pro - cess for private antitrust claims. Judgments from the Court of First Instance can be appealed to the Court of Appeal, which conducts a comprehensive de novo review of both the factual merits – including expert economic evidence – and the legal arguments. The final avenue for recourse is the Court of Cassation, the Kingdom’s highest judicial authority. It is important to note that the Court of Cassation operates strictly as a court of law; it does not re-evaluate witness cred - ibility or factual economic data. Its sole mandate is to determine whether the lower courts misapplied stat - utes like the Competition Law, misinterpreted legal doctrines, or committed severe procedural errors. 12. Appeals 12.1 Basis of Appeal
31 A NTITRUST LI T IGATI O N 2026
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