The COVID-19 pandemic and the social and physical distancing measures and restrictions to contain the spread of the Coronavirus have inevitably impacted court proceedings throughout the world. Countries have responded differently, primarily depending on the existence of their technological infrastructure and on the flexibility of their procedural rules to enable or facilitate digital processes.
Since 2015, the Kingdom of Bahrain has been building its technological infrastructure and transitioning to digital processes for the registration of new cases and the filing of applications, pleadings and evidence to promote a modern, efficient and sustainable process, in the interests of the administration of justice, and in accordance with the Kingdom’s Economic Vision 2030.
Decree Law No. 54 of 2018 on the Issuance of the Electronic Communications and Transactions Law was published in the Official Gazette on 29 November 2018. Order No. 127 of 2019 on the Acceptance and Scope of Electronic Transactions was published in the Official Gazette on 12 December 2019 and provides under Article (3) (a) that the acceptance and scope of electronic transactions shall apply to the registration of new cases and the filing of applications, pleadings and evidence, etc.
Order No. 89 of 2018 with respect to the Organization of Notifications by Electronic Means as amended by Order No. 122 of 2019 permits court notification by electronic mail and SMS.
While the majority of hearings and filings still took place physically in the court room, Bahrain had the digital platform and readiness to transition to handle litigation remotely at the onset of the COVID-19. It may be said that the COVID-19 has been a catalyst for the digital transformation. It is highly impressive that, similar to courts in other leading foreign jurisdictions, Bahrain was able and ready to respond with agility, flexibility and speed to the COVID-19 pandemic by focusing on enhancing the utilization of existing technology to enable the courts and judicial processes to operate largely unimpacted in the current circumstances. Against this background, I outline here some of the notable changes to judicial processes:
- In addition to the eGovernment Portal, which enables users to utilize a range of e-Services, from services relating to civil, Shariah and criminal court cases, to execution services relating to execution files such as opening execution files, submitting requests and paying the due amounts, to judicial announcements and notifications, to licenses and attorney services relating to powers of attorney requests, authorizations and licenses of attorneys, experts and brokers, etc., the Ministry of Justice and Islamic Affairs and Awqaf together with the Supreme Judicial Council have also made available dedicated communication channels by electronic mail and by telephone to assist and support lawyers, paralegals and litigants and address their queries to allow for the seamless electronic registration of cases and filing of applications and pleadings without the need for their physical attendance.
- By Order No. 30 of 2020 the regulations for commercial cases were issued. Inter alia the Regulations limit the timeframe for the case management and limit the number of adjournments in a case to ten adjournments and the time limit to 180 days from the date of the registration of the case.
- Order No. 35 of 2020 was issued to permit small claims civil and commercial cases not exceeding BHD 1,000 to be fully electronic. The Order also limits the timeframe for the case management and limits the number of adjournments in a case to five adjournments and the time limit to 90 days from the date of the registration of the case.
- Order No. 41 of 2020 was also issued with respect to a list of civil and commercial bills or loan claims not exceeding BHD 5,000.
- Order No. 42 of 2020 of the Regulation of the Procedures for Civil Cases was issued which, inter alia, permits electronic case procedures and prescribes a time limit for the case management.
- Order No. 45 of 2020 with respect to the Procedures for Labour Disputes and the Use of Electronic was issued permitting the registration of new cases and the filing of applications, pleadings and evidence electronically.
- The amendment of the Criminal Procedures Law No. 46 of 2020, as amended, (the Criminal Procedures Law) by Law No. 7 of 2020 and the Order No. 61 of 2020 Establishing Temporary Headquarters for Courts in Law to facilitate remote hearings of the criminal courts by utilizing electronic means.
- Order No. 47 of 2020 was issued amending Order No. 11 of 2015 with respect to the Organization of the Leasing Disputes Committee and the Procedures for Presentation of Disputes and Means of Notification permitting the registration of new cases and payment of the court fees and the filing of applications, pleadings and evidence electronically.
- Order No. 46 of 2020 was issued with respect to the Use of Electronic Means in Appeals by Appeal and by Cassation permitting the appeal of judgments before courts of appeal and the court of cassation in civil, commercial, labour and non-Muslim personal status matters by electronic means.
It is also worth mentioning the impact the COVID-19 pandemic has had on the prospects of settlement of disputes.
COVID-19 has affected every industry and sector and, in these unprecedented circumstances, commercial parties and individuals in dispute are mindful of reaching a settlement and avoiding the costs, stress and uncertainties of drawn-out litigation rather than focusing their attention solely on “winning”. As a result, the conduct of mediations is gaining a renewed momentum as parties to dispute are increasingly pursuing mediation/ negotiation as an attractive alternative means of dispute resolution. This is also in part propelled by the developments in Bahrain and its adoption of the Mediation Law No. 22 of 2019. Pursuant thereto, the Ministry of Justice, Islamic Affairs and Awqaf has established a certified list of mediators.
The post-COVID changes to the conduct of cases are aimed to make litigation more efficient on many levels, with many commercial disputes being resolved in less than six months. This can only be a good thing for the parties involved and so will be retained for the long-term.
It should be applauded how Bahrain’s courts have been able to switch to electronic online procedures post-COVID-19 as opposed to being subject to suspensions or material delays on grounds of the novel Coronavirus and the measures and restrictions. Those changes, together with the timetables for cases are aimed to make litigation increasingly efficient.