Gathering Evidence in Aid of Foreign Litigation Guide |
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Bahrain |
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(Middle East)
Firm
Hassan Radhi & Associates
Contributors
Mohamed Shaban |
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| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Gathering evidence is governed in Bahrain by Law No. 14 of the year 1996 (as amended) (the “Law of Evidence”). While the Articles of the Law of Evidence do not regulate gathering evidence in aid of foreign litigation in general, we note that cooperation with specific jurisdictions is regulated by virtue of bilateral or multilateral treaties that are later on incorporated as laws, such as:
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| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | Bahrain is not a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”), neither the laws provide statuary requirements for obtaining evidence in aid of foreign litigation in general, the matter is rather regulated under each treaty or agreement when it comes to specific jurisdictions as provided in our response to "Does your jurisdiction permit gathering evidence in aid of foreign litigation?". As a general requirement under these treaties and bilateral agreements, the approval of the competent judicial body in Bahrain shall be sought to initiate the procedures of gathering information. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | In accordance with the wording of the decrees mentioned in our response to "Does your jurisdiction permit gathering evidence in aid of foreign litigation?", gathering evidence in foreign aid requires a request from the competent judicial authority in Bahrain to decide on the matter that needs the evidence such as the civil, criminal and family courts, to the competent judicial body in the foreign country. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | Evidence that is gathered by foreign aid can be through any process allowed by the Bahraini law such as testimonies, expert reports and examinations. |
| Who bears the burden of showing whether any privileges apply? | The laws in Bahrain do not regulate the burden of showing whether any privileges apply in gathering evidence, and nor do the treaties contain provisions on the issue. Nevertheless, we are of the view that in the absence of such regulations, the burden of showing that privileges apply is on the party requested to provide the evidence. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | The bilateral agreements and treaties mentioned in our response to "Does your jurisdiction permit gathering evidence in aid of foreign litigation?" provide that foreign jurisdictions can reject the request of the local jurisdiction body to gather evidence on the basis that the evidence sought is against the public order, hence, courts in Bahrain may reject the request of the parties if the information sought is not allowable in the foreign jurisdiction. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | Bahraini law does not regulate depositions; the testimonies have to be provided before the courts in order to be accepted. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | No, "Blocking Statutes" limitation does not exist under Bahraini law. |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | Bahraini law has not addressed the matter in question. We are of the view that in the absence of a clear legal prohibition, citizens are allowed to voluntarily give evidence in foreign proceedings, except where such action constitutes a crime such as the crime of communicating privileged documents or secrets. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | We are of the view that our answers will not differ, as Bahrain adopted the UNCITRAL Model Law by Law No. 9 for the year 2015, Article 27 of the aforementioned law provides that: “The arbitral tribunal or a party with the approval of the arbitral tribunal may request from a competent court of this State assistance in taking evidence. The court may execute the request within its competence and according to its rules on taking evidence.” Therefore, any request made by an arbitral tribunal to gather evidence through foreign aid in accordance with the above article shall be governed by the same requirements applied to litigation. |
Gathering Evidence in Aid of Foreign Litigation Guide
Bahrain
(Middle East) Firm Hassan Radhi & AssociatesContributors Mohamed Shaban
Updated 16 Mar 2022Gathering evidence is governed in Bahrain by Law No. 14 of the year 1996 (as amended) (the “Law of Evidence”). While the Articles of the Law of Evidence do not regulate gathering evidence in aid of foreign litigation in general, we note that cooperation with specific jurisdictions is regulated by virtue of bilateral or multilateral treaties that are later on incorporated as laws, such as:
- Egypt (Legislative decree No. 10/1989)
- Gulf Cooperation Council countries (Legislative decree No. 9/1996)
- Morocco (Legislative decree No. 3/1999)
- Riyadh Convention (Legislative decree No. 41/1999)
- Syria (Legislative decree No. 30/2001)
- India (Legislative decree No. 9/2005)
Bahrain is not a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”), neither the laws provide statuary requirements for obtaining evidence in aid of foreign litigation in general, the matter is rather regulated under each treaty or agreement when it comes to specific jurisdictions as provided in our response to "Does your jurisdiction permit gathering evidence in aid of foreign litigation?".
As a general requirement under these treaties and bilateral agreements, the approval of the competent judicial body in Bahrain shall be sought to initiate the procedures of gathering information.
In accordance with the wording of the decrees mentioned in our response to "Does your jurisdiction permit gathering evidence in aid of foreign litigation?", gathering evidence in foreign aid requires a request from the competent judicial authority in Bahrain to decide on the matter that needs the evidence such as the civil, criminal and family courts, to the competent judicial body in the foreign country.
Evidence that is gathered by foreign aid can be through any process allowed by the Bahraini law such as testimonies, expert reports and examinations.
The laws in Bahrain do not regulate the burden of showing whether any privileges apply in gathering evidence, and nor do the treaties contain provisions on the issue. Nevertheless, we are of the view that in the absence of such regulations, the burden of showing that privileges apply is on the party requested to provide the evidence.
The bilateral agreements and treaties mentioned in our response to "Does your jurisdiction permit gathering evidence in aid of foreign litigation?" provide that foreign jurisdictions can reject the request of the local jurisdiction body to gather evidence on the basis that the evidence sought is against the public order, hence, courts in Bahrain may reject the request of the parties if the information sought is not allowable in the foreign jurisdiction.
Bahraini law does not regulate depositions; the testimonies have to be provided before the courts in order to be accepted.
No, "Blocking Statutes" limitation does not exist under Bahraini law.
Bahraini law has not addressed the matter in question. We are of the view that in the absence of a clear legal prohibition, citizens are allowed to voluntarily give evidence in foreign proceedings, except where such action constitutes a crime such as the crime of communicating privileged documents or secrets.
We are of the view that our answers will not differ, as Bahrain adopted the UNCITRAL Model Law by Law No. 9 for the year 2015, Article 27 of the aforementioned law provides that:
“The arbitral tribunal or a party with the approval of the arbitral tribunal may request from a competent court of this State assistance in taking evidence. The court may execute the request within its competence and according to its rules on taking evidence.”
Therefore, any request made by an arbitral tribunal to gather evidence through foreign aid in accordance with the above article shall be governed by the same requirements applied to litigation.