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The New
Bahrain Arbitration
Law and the Bahrain
Free Arbitration Zone
BY JO H N M . T OW NSEND
Reprinted from the Dispute Resolution Journal, vol. 65, no. 1 (Feb.-April 2010),
a publication of the American Arbitration Association, 1633 Broadway, New York, NY 10019-6708,
212.716.5800, www.adr.org.
!
How
Bahrains new
Arbitration Law and
Free Arbitration Zone
address concerns that multinational companies have
about arbitrating international commercial disputes in the Middle
East.
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The new legislation also creates a new Bahrain
Chamber for Dispute Resolution (BCDR), which
is intended to become both a Bahraini national
and a Middle Eastern regional arbitration center
that will be run with the help of the American
Arbitration Association (AAA). Creating an international arbitration center from scratch is not an
easy proposition, especially in a part of the world
in which users of arbitration have been critical of
the judicial structure within
which arbitration has up to now
had to be conducted. In spite of
the convenience of having regional arbitration centers in the
Middle East, many corporations
have remained cautious about siting arbitrations there out of concerns that local courts are inexperienced in dealing with arbitration and that awards against
influential local parties (especially those connected with or
favored by governments) might
simply be set aside.
FEBRUARY/APRIL 2010
First Instance, arguing that the arbitrators warning to the witnesses at the hearing that they were
bound to tell the truth and could face severe
consequences for not doing so was insufficient,
because Dubai law requires witnesses to declare,
I swear by the Almighty to tell the truth and
nothing but the truth.6 On Nov. 16, 2002, the
Dubai Court of First Instance ruled in the governments favor and vacated the award because
the arbitrator did not administer the oath to witnesses in the proper local form. Bechtel appealed
to the Dubai Court of Cassation, which affirmed
the lower courts decision.7
While its appeal in Dubai was pending,
Bechtel also filed petitions for judicial recognition and enforcement of the arbitration award in
the United States and France. The U.S. federal
district court initially denied a motion by the
Dubai government to dismiss and stayed proceedings pending the appeal to the Dubai Court
of Cassation, while noting that the reasoning of
the Dubai lower court in nullifying the award
registers at the hypertechnical fringe of what
Americans would call justice.8 Nevertheless,
after the Dubai Court of Cassation affirmed the
lower courts decision, the U.S. court dismissed
Bechtels petition on grounds nearly as technical.
The court concluded that Bechtel was not entitled to relief under the New York Convention
because the United Arab Emirates, of which
Dubai forms a part, was not then a signatory to
that convention. The court also found that relief
was unavailable under the Federal Arbitration Act
because the parties had not agreed that a judgment on the award could be entered in an
American court, as required by Section 9 of the
FAA.9
Bechtel fared better in France, where the Paris
Court of Appeal affirmed the ex parte enforcement order issued by the Paris Court of First
Instance on the ground that the annulment by
the Dubai Court of Cassation applied only to the
UAE and was without international effect.10 But
Bechtels ultimate success in France did little to
allay fears that Middle Eastern courts might
again interfere unduly with arbitrations sited in
the region. Users of arbitration remained
alarmed by the decisions of the courts of Dubai,
which received widespread negative attention.11
Set-Aside Proceedings under the New York Convention. The New York Convention provides for
three kinds of interaction between the courts of
contracting states and parties to an arbitration
agreement or award. First, Article II.1 requires
contracting states to recognize and enforce
agreements to submit to arbitration differences
that are capable of being settled by arbitration.
DISPUTE RESOLUTION JOURNAL
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arbitration agreements and to allow the resulting
awards to be respected by the courts.
Instead, Bahrain chose to address these concerns directly by removing its courts altogether
from the picture (except when awards are to be
enforced in Bahrain), thus creating the Free
Arbitration Zone. To understand how it did so, it
is necessary to look at the structure of Legislative
Decree No. 30.
The BCDRs Two Types of Jurisdiction. The
Decree confers two types of jurisdiction on the
new BCDR. The first is called Jurisdiction
under the Law, and the second is called Jurisdiction by Party Agreement. As discussed below,
each represents a different facet of Bahrains
modernization efforts.
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Court orders its suspension .30 Article 23 provides that an arbitration award issued pursuant to
Jurisdiction by Party Agreement shall be enforced like any other arbitration
award subject to the New York
Convention.
Therefore, if asked to enforce
an award resulting from the
BCDR-AAAs Jurisdiction by
Party Agreement in Bahrain, the
Bahraini courts retain the ability
to refuse enforcement or stay
proceedings for any of the reasons enumerated in Articles V
and VI of the New York Convention. These grounds are
echoed in the Decree.31 And one
of the grounds on which recognition and enforcement of an
award may be refused is if the
tribunal award contradicts the
public policy of Bahrain.32 The
use of the Free Arbitration Zone
thus only prevents Bahraini courts from setting
aside an arbitration award destined to be enforced elsewhere; it does not require them to
enforce that award within Bahrain.33
By allowing the Bahraini courts to refuse
enforcement of an award for all of the reasons
permitted by the New York Convention, includ-
The legislative
decree creates a
Free Arbitration
Zone by allowing
the parties to
agree not to seek
enforcement
or annulment
of the award
in Bahrain.
Conclusion
Parties who qualify for and
elect the Free Arbitration Zone,
and who do not intend to enforce the resulting arbitration
award in Bahrain, have a significant new option. They may
agree to hold their arbitration in
one of the most friendly and
convenient locations in the Persian Gulf, under
any law other than Bahrains to which they may
agree, and under rules written and administered
by the BCDR with the help of the AAA. And
they may do so without concern that the courts
of Bahrain will interfere with or set aside the
"
award of the arbitrators.
ENDNOTES
1
New York Convention, art. V.
Bahrain ratified the New York Convention in 1988. The text of the New York
Convention is available on the UNCITRAL Web site at www.uncitral.org.
2 Bechtel is not the only such example.
A decision of the Egyptian Court of
Appeal nullifying an arbitration award
against the Egyptian Air Force led to the
famous Chromalloy decision, which enforced the award in the United States in
spite of its having been set aside in
Egypt. In re Arbitration between Chromalloy Aeroservices, Inc. and the Arab
Republic of Egypt, 939 F. Supp. 907
(D.D.C. 1996).
3
The Bechtel arbitration is described
in two decisions of the U.S. District
Court for the District of Columbia, to
which the award was submitted for enforcement. See In re Arbitration between
Intl Bechtel Co. Ltd. & Dept of Civil
Aviation of Govt of Dubai, 300 F. Supp.
2d 112 (D.D.C. 2004) (Bechtel I); 360 F.
Supp. 2d 136 (D.D.C. 2005) (Bechtel
II).
4 See Renewed Motion to Dismiss
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