BAHRAIN Law and Practice Contributed by: Noor Al Rayes, Bradley Price and Raghad Al Matrook, Al Tamimi & Company
8.3 Powers of Compulsion Tribunal Powers and Court Assistance
Evidence at Pleading and Hearing Stage In practice, parties typically rely on documentary evi - dence, witness statements and expert reports. Oral hearings commonly include cross-examination of wit - nesses and experts. The process is generally flexible and shaped by the procedural framework agreed by All statements, documents and information submit - ted by one party must be communicated to the other party, reflecting the principles of equal treatment and the right to be heard. While it is possible for a party to request the tribunal to order the opposing party to disclose documents that are defined in a specific request, such orders are discretionary and in practice are not routine. The requesting party must demon - strate a legitimate interest in the documents for the the parties or directed by the tribunal. Disclosure and Procedural Fairness Parties frequently adopt the IBA Rules on the Taking of Evidence in International Arbitration to structure document production, witness testimony and expert evidence, although these are not mandatory under Bahraini law. 8.2 Rules of Evidence Applicable Evidentiary Standards Arbitral proceedings in Bahrain are not governed by the strict technical rules of evidence that apply in domestic court litigation. Instead, the arbitral tribunal has discretion under the Arbitration Law to determine the admissibility, relevance, materiality and weight of evidence. Relationship With Domestic Evidence Law The formal rules of evidence under Bahraini civil and commercial procedure do not apply to arbitration pro - ceedings. This allows arbitral tribunals greater proce - dural flexibility compared to domestic courts. Practical Approach In practice, this flexibility enables tribunals to tailor the evidentiary process to the needs of the dispute and, where appropriate, to apply soft-law instruments such as the IBA Rules on the Taking of Evidence in International Arbitration. purposes of the arbitration. Use of International Rules
An arbitral tribunal in Bahrain does not have direct coercive powers over witnesses or third parties. How - ever, it may seek assistance from the national courts under Article 27 of the Arbitration Law. Under this provision, the tribunal, or a party with the tribunal’s approval, may request the competent Bah - raini court to assist in taking evidence. The court may then execute the request in accordance with its own procedures, including compelling the production of documents or witness testimony where necessary. Parties vs Non-Parties This mechanism is particularly relevant in relation to non-parties, as arbitral tribunals lack authority to com - pel their co-operation directly. By contrast, parties to the arbitration are generally bound by the tribunal’s procedural orders, including directions relating to document production and wit - ness evidence. However, enforcement of non-com - pliance depends on the tribunal’s procedural powers and, where necessary, assistance from the courts. The Arbitration Law does not impose an express, gen - eral statutory duty of confidentiality covering arbitral proceedings, documents or awards. This is consistent with the position under the UNCITRAL Model Law, which does not mandate confidentiality as a default feature of arbitration. Practical Protection of Confidentiality In practice, confidentiality is primarily ensured through: • The parties’ agreement • The applicable institutional rules (such as BCDR, ICC or LCIA rules) • Confidentiality orders issued by the arbitral tribunal • The private nature of arbitral hearings 9. Confidentiality 9.1 Extent of Confidentiality General Position
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