Kingdom of Bahrain

Despite its size, Bahrain has fostered a thriving in-house community, with a well-developed role to play in a rapidly changing business environment.

Bahrain is the smallest of all members of the Gulf Cooperation Council, with a population of a hair over 1.5 million – just more than half the population of the next-smallest GCC state, Qatar.

Like most of the region’s oil-dependent nations, Bahrain has long fought to diversify its economy and free itself from the volatility of global oil prices. Despite being the first country in the Middle East in which oil was found (1932), Bahrain has struck oil only once more since then and, with a portfolio of merely two oilfields, the need to diversify has always been particularly pressing for the country. As reserves have dropped, the leadership in Bahrain has taken great pains to pivot the economy away from oil and toward diversity.

This background informs the Bahraini approach to business today: innovation and doing more with less. It is no surprise, then, that the country’s in-house community has grown into a vibrant, mature, and business-critical component of a constantly changing business environment.

Bahrain’s trusted advisers

Today, the in-house role enjoys a high profile in Bahrain: many of its general counsel also enjoy senior positions either sitting on the board outright, or advising it directly in a secretarial capacity. Understandably, this high position gives the legal function more teeth than they otherwise might have.

‘Historically, it is not very common for large financial institutions, as it is difficult to find someone who is able and experienced enough to perform both roles,’ explains Jawad Zabar, group general counsel and board secretary at BFC Group Holdings. ‘However, in recent times, I have seen it slowly becoming more and more common as organisations also start looking at reducing cost.’

‘It is very important to involve the board on every research-critical matter. Having access to the board as well as directly interfacing with the CEO and CFO really helps, because I report to the CFO and, by extension, the CEO. This helps things move faster and more effectively,’ adds Bharat Kumar Mehta, general counsel and board secretary for APM Terminals in Bahrain.

‘It is very important that I, as legal person have knowledge about important activities in the business. This can only be possible if one is involved from the start of the process, and given the senior position; it really enables me to get that information across to the board, and it’s easier to get information from others, as there is less pushback.’

The argument in favour of having a legal adviser at board level can be made anywhere in the world but, in Bahrain, the need is particularly pertinent.

‘In Bahrain the regulatory environment is rapidly evolving. Bahrain is coming up with many more laws – every two months there is a new law. For example, we just came out with a new data protection law in line with GDPR, we’ve come out with a new competition law, a new economic standards law in July, then we have also come out with an online marketplace or ecommerce law. So, they are coming out with so many laws that, I don’t anticipate how a business can work without in-house legal departments.’

National innovation

In addition to the same general legislative and regulatory changes faced by any rapidly evolving nation, there is another reason why the legal environment in Bahrain is moving as fast as it is. Despite its size, the country has been able to carve out a name for itself as an innovator in areas where other, more prominent countries have lagged behind.

The Central Bank of Bahrain, for example, formally established a FinTech and Innovation Unit to ensure that the country was properly catering for and nurturing the development of its burgeoning fintech industry. Involved in this push was the establishment of a ‘regulatory sandbox’, in which fintech companies are enabled to develop their offerings in a virtual space. The Central Bank of Bahrain has also established the Global Financial Innovation Network, which is designed to help firms interact with regulators and navigate between different frameworks across multiple countries when looking to expand globally.

‘Bahrain is unique due to its small geographical size and its important role in the region as a financial and commercial hub,’ explains Zabar.

“Bahrain is unique due to its small geographical size and its important role in the region as a financial and commercial hub. It is ever evolving.”

‘It is ever evolving, especially with the introduction of disruptive technologies. However, Bahrain is always looking to take a welcoming stance on these technologies and adapt to add value to the country, and simplify or foster frictionless transactions while promoting business growth.’

These latest innovations are only the latest entries in a long record of Bahrain leading the way in the region. Particularly in the financial sector, Bahrain is renowned for being ahead of the curve, and such long-term thinking enabled Bahrain to establish itself as a banking hub as early as the 1970s. It was among the first in the region to draft and implement a trusts law, and was the first country in the GCC to implement an investment limited partnership law, long used around the world specifically for investment in collective investment funds.

This appetite for innovation trickles down to the in-house counsel working on the ground in Bahrain, and challenges them to step-up in their professional lives.

‘As a result, the depth of international exposure you experience as a legal counsel in Bahrain is a great opportunity. Bahrain is always at the forefront of adopting international best practices. Recent examples include being the first in the region to introduce the regulatory sandbox for fintech products, creating one of the first fintech hubs in the region, introducing personal data protection laws and groundbreaking electronic transaction laws,’ says Zabar.

‘Therefore, the unique challenge is being able to navigate the ever changing legal and regulatory landscape; however, as with every unique challenge, it is also a unique opportunity.’

Foreign investment

Bahrain’s tilt towards innovation has proved vital in moving the country beyond oil and towards other sources of economic prosperity. Progressive efforts on the part of the leadership – such as the regulations that led to Bahrain’s prominence as a financial centre – have gone a long way towards attracting foreign investment.

‘Bahrain has always tried to work toward a better regulatory environment. They want to be in line with all EU requirements, for instance, because they want to promote Bahrain as an investment centre,’ says Mehta.

‘To attract international investments or foreign investments, they will need to establish a proper legal regulatory environment, because if they don’t have, for example, a proper anti-corruption and bribery law, then the entities in Europe or other countries will not be able to invest in Bahrain. That is where they want to build the regulatory environment up to the speed of any developed country: in order to get the best rating, and in order to improve ease of business and compliance with international laws.’

Religiously competitive

Similar to many countries in the region, Bahrain’s official religion is Islam and, as such, Sharia law plays a large role in the country’s constitution. Article 2 of Bahrain’s 2002 Constitution declares Sharia as the primary source of legislation. Though Sharia courts typically handle matters of family law, the civil courts of Bahrain are required to look to Sharia in cases where legislation is unclear on a particular matter.

While the role of Sharia is limited in commercial matters, the fact that Bahrain is an overwhelmingly Muslim country means that lawyers still need to be cognisant of the religious law.

‘Having worked in an investment firm, we had investors who were Sharia and, to deal with Sharia investors, we had to ensure we had Sharia-compliant funds,’ explains Mehta. ‘Understanding Sharia concepts, coming from a non-Sharia country, was a new experience.’

The presence of Sharia law in Bahrain’s legal code also serves as yet another example of how Bahrain manages to gain a competitive edge in the international marketplace, maintaining its status as an attractive destination for foreign investment. In 2017, the Central Bank of Bahrain introduced some of the most advanced rules governing Islamic banks by requiring them to undergo independent and external audits in order to verify compliance with Sharia. Compare this to most banks in the GCC, which are typically free to rely on their own in-house religious scholars to ensure that products being offered are indeed Sharia compliant. The first audit reports, which are required to be made public, are expected in 2020.

“The presence of Sharia law in Bahrain’s legal code also serves as yet another example of how Bahrain manages to gain a competitive edge in the international marketplace.”

‘Bahrain, along with Dubai and Kuala Lumpur, are as seen as leaders in the area of Islamic finance in particular,’ says one general counsel for a private investment fund in Bahrain. ‘For its size, Bahrain has a huge piece of the global Islamic banking market, at just under 2%.’

Visions for the future

Like many Gulf countries, Bahrain has set out its vision for the future in a 26-page document entitled Bahrain Economic Vision 2030. Launched in 2008, the vision marked the beginning of renewed reforms and liberalisation in Bahrain, and continues the country’s long arc towards a diverse, oil-independent economy. Increased volatility in global oil prices in recent years has only shone further light on the urgency of this diversification.

This vision has manifested in countless regulatory and legislative changes over the past few years and even decades. Most private companies enjoy tax-free status, and many sectors allow for 100% foreign ownership, such as in the technology and manufacturing sectors. The Kingdom has also reduced the minimum capital requirements for incorporating in Bahrain, specifically to open the door more widely to foreign investment.

In keeping with Bahrain’s tradition of being a first mover, in 2019 Bahrain became the first country to adopt the United Nations Commission on International Trade Law (UNCITRAL)’s model e-commerce laws. Among many other things, the laws puts electronic documents – bills of lading and promissory notes, for instance – on the same legal footing as their paper equivalents. Together with improving supply-chain efficiency throughout the economy, the law also paves the way toward a blockchain-backed future.

The New Arbitration Law in 2015 introduced UNCITRAL’s model law on international commercial arbitration into the Bahrain legal system, applying it to all arbitration cases, whether or not the arbitration takes place in Bahrain or abroad.

These are but a few of the reformations flowing down from Bahrain’s vision 2030, and the breakneck pace at which the Vision is being implemented is largely welcomed by the in-house community.

‘It gets difficult, keeping abreast of the legal changes in Bahrain, but business by and large understands the necessity. The changes that have been made have, to my knowledge, all been necessary and will, I think, be very positive for Bahrain,’ says one general counsel for a private investment fund in Bahrain.

Zabar is similarly optimistic: ‘In the next five years, the ever increasing prevalence of legal tech, and the continued roll-out of groundbreaking initiatives and laws and regulations governing electronic transactions and digitisation – as a result, Bahrain will continue to be a unique destination to attract foreign direct investment and sponsor business growth in the region.’

There are still creases yet to be ironed out. According to the World Bank, Bahrain ranks 62nd out of 190 countries in its 2019 Ease of Doing Business rankings.

‘One problem which we see is lack of precedence on basic matters,’ explains Mehta. ‘If the authorities are not very clear, then it can hinder business. They need to create that clarity across the authorities as well as across the entities or organisations in order to ensure the smooth implementation of such laws. It creates difficulty.’

One example that Mehta gives is the country’s labour laws relating to annual leave: a new law introduced in 2012 increased the minimum annual leave entitlement to 30 days, but a lack of clarity on whether this meant working days or calendar days left businesses in a state of confusion until further clarity was provided.

‘The company needs one answer. They need to know what they have to do. That is a challenge which an in-house counsel will face every day, and we have to come up with our right interpretation, what makes sense for the company, so we have to move ahead regardless,’ he says.

‘From the regulatory perspective, I think they still need to evolve quite a lot when compared to other developed or developing nations.’ n