Extending the use of English in BCDR Court cases

12 March 2023

On 6 March 2023, the Minister of Justice, Islamic Affairs, and Waqf issued Resolution No. 28 of 2023 (the “Resolution”), published in the official gazette on 9 March and entering into effect on 10 March 2023, specifying that, other than Arabic, English may be used before Bahraini courts and before the Court of the Bahrain Chamber for Dispute Resolution (the “BCDR Court”), and expanded the circumstances in which English may be used. The adoption of Resolution No. 28 of 2023 follows the adoption of Resolution No. 134 of 2021 promulgating new BCDR Court rules of procedure, which first permitted the use of English in BCDR Court cases (also known as Section 1 cases), and Royal Order No. 3 of 2022 appointing judges to hear BCDR Court cases in which the parties have agreed to use English as the language of the proceedings.

The newly adopted Resolution extends the use of English by making it the default language in some cases, without the need for a prior agreement of the parties before the filing of the case or during the case management phase, as was previously required under Article 5 of the BCDR Court rules of procedure. Article 1 of Resolution No. 28 of 2023 provides that English shall be the default language in BCDR Court cases if the language of the contract underlying the dispute is English and:

  1. the disputing parties are financial institutions licensed in accordance with the provisions of the Central Bank of Bahrain and Financial Institutions Law, or the dispute is between such an institution and another commercial company licensed in accordance with the provisions of the Commercial Companies Law; or
  2. the disputing parties are commercial companies licensed in accordance with the provisions of the Commercial Companies Law, and the dispute relates to obligations arising from their commercial relationship; or
  3. the dispute relates to international trade and the dispute is between financial institutions, companies, or a financial institution and a company.

The agreement of the parties to use English in the contract underlying the dispute in the above circumstances is the basis for using English in the proceedings.

If the contract is drafted in more than one language, including English, then English shall not be the default language for the proceedings unless the contract explicitly stipulates the adoption of the English language in case of discrepancy between the contractual texts.

The Resolution also allows the disputing parties to retract their choice of English as the language of the proceedings, provided that the retraction is done in writing before filing the case.

Article 3 of the Resolution further allows the parties to choose English as the language of the proceedings in cases brought before the BCDR Court, if they so agree in writing before the case is filed, and provided that:

  1. the contract underlying the dispute is drafted in a language other than Arabic; and
  2. the agreement to use English during the proceedings is provided for in the contract underlying the dispute, in correspondence between the parties, or in a separate agreement.

In addition to specifying the conditions and circumstances in which the English language may be used in BCDR Court cases, the Resolution also states the conditions and circumstances in which English can be used in proceedings before other Bahraini courts.