The Amiable Compositeur in Bahraini Arbitration Law

Arbitration has become a strategic option for resolving commercial disputes in the Kingdom of Bahrain, not only for its speed and efficiency but also for the significant flexibility it offers the parties involved. At the heart of this flexibility lies the concept of the "amicable compositeur," a legal tool that allows the arbitrator to resolve disputes based on principles of justice and fairness, transcending the strict literal application of the law.

This article reviews the role of the amicable compositeur in the Bahraini legal system, highlighting its relationship with international standards adopted by UNCITRAL and how the modern Bahraini Arbitration Law has reinforced this concept.

International Foundation: The Relationship Between Bahraini Arbitration Law and UNCITRAL

The Kingdom of Bahrain took a decisive legislative step by issuing Decree-Law No. (9) of 2015 concerning the Arbitration Law, which is primarily inspired by the UNCITRAL Model Law on International Commercial Arbitration. This alignment was not merely an update but a clear message to the world that Bahrain is a modern and reliable arbitration center.

Objectives of this Alignment:

• Enhancing Trust: Adopting internationally recognized standards reassures investors and international parties.
• Simplifying Procedures: Providing a clear and unified procedural framework that facilitates the arbitration process.
• Limiting Judicial Intervention: Affirming the independence of arbitration and restricting the role of the judiciary to post-factum oversight in specific cases.

This legal environment, aligned with best international practices, paved the way for the application of advanced concepts such as "delegation of conciliation."

The Amicable Compositeur in the UNCITRAL Framework: Basis of Authority

Both of UNCITRAL's primary documents—the Model Law and the Arbitration Rules—lay the legal foundation for the authority of the amicable compositeur.

In the UNCITRAL Model Law:

The pivotal article is Article 28(3), which states: "The arbitral tribunal may, unless otherwise agreed by the parties, decide the dispute ex aequo et bono or as amiable compositeur, if so authorized by the parties." The essence of this article lies in granting the arbitral tribunal exceptional authority, provided there is explicit consent from the parties, to resolve the dispute based on what it considers fair and equitable.

In the UNCITRAL Arbitration Rules:

Article 35(2) (in the 2010 version and thereafter) reflects the same principle, confirming that if the parties have expressly authorized the tribunal, it will decide the dispute on this basis.

Other articles indirectly support this concept, such as those related to the necessity of reasoning the decision, its form, and the possibility of correction, ensuring that the decision of the amicable compositeur, despite its flexibility, is issued within a sound procedural framework and possesses legal effectiveness.

The Essence of Delegation of Conciliation in Bahraini Legal Practice

The amicable compositeur is an arbitrator granted explicit authority by the parties to seek the most equitable solution, even if that means not adhering strictly to substantive legal rules. His delegation is characterized by the following:

• Freedom from the Rigidity of Law: The goal is not to apply legal texts literally but to achieve tangible justice between the parties, adhering to the fundamental principle of not violating public order.
• Focus on Justice and Equity: The amicable compositeur concentrates on finding a solution that balances conflicting interests and achieves fairness that rigid legal rules may not provide in some cases.
• Explicit Agreement as a Fundamental Condition: This authority is never presumed. The parties must explicitly and clearly agree to grant the arbitrator this delegation. In the absence of such an agreement, the default remains arbitration according to the chosen law.
• Finality of the Award: The awards of the amicable compositeur are often final and not subject to appeal, reflecting the parties' desire to resolve the dispute quickly and definitively.

The Impact of the 2015 Arbitration Law on the Amicable Compositeur

The Arbitration Law issued in 2015 did not come with amendments that alter the concept of the amicable compositeur; rather, it reinforced its position and solidified its role by embedding the principles on which it is based through:

• Affirmation of the Principle of Party Autonomy: The new law grants parties broad freedom to determine procedural and substantive rules, including their right to delegate arbitrators for conciliation. This affirmation gives greater power to the parties' agreement.
• Enhancing the Independence of Arbitration: By reducing instances of judicial intervention and limiting them to specific grounds for nullification, the law grants the decisions of arbitrators (including amicable compositors) greater strength and immunity.
• Implicit Recognition of Authority: Although there is no detailed provision specifically for the amicable compositeur, the law's allowance for parties to agree to "relieve arbitrators from adhering to formalities and law" or to rule "according to principles of justice and equity" is an implicit affirmation of this authority. Additionally, the reference to "delegated conciliators" in the previous Civil Procedure Law confirms that this concept is well-established in Bahraini legal culture.

Conclusion

The concept of the "amicable compositeur" is not merely a procedural option but a reflection of the modern arbitration philosophy that prioritizes the will of the parties. The Bahraini Arbitration Law, by adopting the UNCITRAL framework, has not only preserved this concept but also provided a supportive legal environment that enhances its effectiveness. For companies and individuals seeking to resolve their disputes flexibly, fairly, and quickly, the option of delegation of conciliation remains a powerful and accessible tool within the advanced arbitration framework in the Kingdom of Bahrain.

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