The effect of foreign legislation when enforcing a foreign judgment in Bahrain
Judgement
The enforcement of foreign judgments is governed by Article 252(3) of the Civil and Commercial Procedures Act.
Law Update: Issue 358 - Technology, Media & Telecoms Edition
Fatema SarhanSenior Associate,Dispute Resolution
Bradley PriceAssociate,Dispute Resolution
Generally, the courts of Bahrain will enforce foreign judgments without requiring prior recognition proceedings if the judgment comes from a country that is also a signatory to one of the same treaties or free trade agreements. However, in order for this general rule to be applicable, there are certain criteria which must be met before the courts will consider enforcing the judgment.
The enforcement of foreign judgments is governed by Article 252(3) of the Civil and Commercial Procedures Act. In terms if this article, no enforcement order of a foreign country judgment may be passed before confirming the following:
that the Bahrain law courts are not competent to hear the case which resulted in the judgment, and that the foreign courts that handed down the judgment are competent in accordance with the internationally accepted standards;
that the parties to the case were duly summoned and properly represented;
that the judgment is full and final, in accordance with the law of the court that passed it; and
that the judgment does not contradict any judgment previously passed by the Bahrain courts and does not provide for anything that constitutes a breach of public policy under the Sharia Law.
If the above requirements are met, then the Bahraini courts will be willing to enforce a foreign judgment.
Litigation was initiated by a claimant before the High Court in Singapore. During the court proceedings in Singapore, the respondent made a settlement proposal for the full and final settlement of the dispute, this settlement proposal was subject to the claimant acceptance to the offer within a set time period and prior to withdrawing said offer by the respondent offering it or otherwise, until competent Court disposes of the matter.
Therefore, despite that the claimant did not meet the set time period, the parties reached an agreement, given that the respondent did not withdraw the offer after the lapse of the set time period and that said agreement was reached prior to Court dispose of the matter. Therefore, an order was handed down by the High Court in Singapore declaring the settlement agreement an order of court.
Accordingly, the claimant initiated the enforcement of the foreign judgment before the courts of Bahrain. As is evident from the provisions of Article 252(3) set out above, this particular factual matrix clearly complies with and as such the foreign judgment should be enforce. The claimant was therefore, unsurprisingly, successful before the court of first instance, as well as before the court of appeal.
However, when the matter came before the Court of Cassation, the respondent attempted to change tack by raising an argument surrounding the non-submission of foreign legislation under Article 252 which deals with the principle of reciprocity between different legal jurisdictions. In this instance, the respondent attempted to argue that under the provisions of the Bahrain Civil and Commercial Procedures Act, the court has a duty to critically consider the merits of the foreign judgment and that it cannot merely act as a rubber stamp of approval.
The Court of Cassation rejected the argument of the respondent that the matter be remitted to the court of first instance for re-hearing and further clarified that the principle of reciprocity is applicable, but that foreign law is to be regarded as a material fact which can be confirmed by all manner of evidentiary material. In other words, should a party require the use of foreign legislation to prove the elements to enforce a judgment, then this will be considered as evidence, rather than law by the courts.
The court upheld the judgment and dismissed the appeal with costs.
The Court of Cassation has therefore provided clarity and developed the jurisprudence of Bahrain in so far as it has clearly established the framework within which the courts are to consider the principle of reciprocity.
For further information, please contact Fatema Sarhan or Bradley Price.
Published in May 2023
