BAHRAIN Law and Practice Contributed by: Noor Al Rayes, Bradley Price and Raghad Al Matrook, Al Tamimi & Company
Enforcement by National Courts Bahraini courts adopt a pro-arbitration approach con - sistent with the Model Law. Where a dispute is brought before a court in a matter covered by an arbitration agreement, the court must, upon request by a party no later than its first submission on the substance of the dispute, refer the matter to arbitration unless the arbitration agreement is found to be null and void, inoperative, or incapable of being performed. The court will not interrogate the merits of the underlying dispute when enforcing an arbitration agreement. Practical Approach and Enforcement Trend In practice, Bahraini courts generally enforce valid arbitration agreements and refrain from allowing par - allel court proceedings. This reflects a strong judicial policy in favour of upholding party autonomy and sup - porting arbitration. The courts’ approach is consist - ent with Bahrain’s international treaty obligations and reflects its standing as a Model Law jurisdiction. 3.4 Validity Separability of the Arbitration Clause Bahrain recognises the principle of separability under Article 16 (1) of the Arbitration Law, which is based on the UNCITRAL Model Law. Effect of Invalidity of the Main Contract An arbitration clause is treated as an agreement inde - pendent of the other terms of the contract in which it is contained. As a result, a finding that the main contract is null and void does not automatically render the arbitration clause invalid. The arbitration agreement may therefore remain valid and enforceable even if the underlying contract is found to be invalid.
precluded from acting as an arbitrator on the basis of nationality unless the parties agree otherwise. Key Legal Limits The main limitations on party autonomy relate to man - datory requirements of independence and impartial - ity. Arbitrators must remain independent and impartial throughout the proceedings and must meet any quali - fications agreed by the parties. 4.2 Default Procedures Failure of Agreed Appointment Mechanism Where the parties’ agreed method for selecting arbi - trators fails, Article 11 of the Arbitration Law provides default procedures. In a three-member tribunal, each party appoints one arbitrator and the two arbitrators then appoint the chair. If a party fails to appoint its arbitrator within 30 days of a request, or if the two arbitrators fail to agree on the chair within 30 days, the appointment is made by the High Civil Court upon request of a party. In cases involving a sole arbitrator, the court will also appoint the arbitrator if the parties cannot agree. The court may further intervene where any agreed appointment procedure fails due to non-performance by a party or a third party, including an appointing institution. Multiparty Arbitrations The UNCITRAL Model Law does not provide a spe - cific default mechanism for multiparty arbitrations. In such cases, where the agreed appointment structure breaks down, the court’s appointing authority under Article 11 (4) is relied upon to ensure the constitution of the tribunal. 4.3 Court Intervention Scope of Court Intervention A Bahraini court may intervene in the constitution of an arbitral tribunal only in the limited circumstances expressly provided under the Arbitration Law. This reflects the principle that court intervention is restrict - ed to cases where it is specifically permitted by law. The High Civil Court may be requested to make appointments where the agreed appointment mecha -
4. The Arbitral Tribunal 4.1 Limits on Selection Party Autonomy in Appointment
Party autonomy in the selection of arbitrators is broad in Bahrain. The parties are free to determine the num - ber of arbitrators and the procedure for their appoint - ment. If the parties do not agree on the number, the default position is three arbitrators. No person may be
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