Brunei litigation guide
Colin Ong
Dr Colin Ong Legal Services
Tel: +673 2420913; Fax: +673 2420911; Email: onglegal@brunet.bn
Many of Brunei Darussalam’s statutory laws, which regulate mercantile activities and disputes between persons, are traditionally based upon English Acts. In addition to a common law system, Brunei is the last country in Asia to have the Judicial Committee of the Privy Council sitting in the UK as its court of final appeal.
Parties to a civil dispute can mutually agree before the commencement of the trial, or before the judgment has been handed down by the Court of Appeal, to have the Judicial Committee of the Privy Council as the court of final appeal.
The Brunei Supreme Court has exclusive jurisdiction over all civil and criminal laws, and the rules of procedure that are used in the Supreme Courts are based upon the pre-1999 English Supreme Court practice. One of the most important pieces of legislation in Brunei is the Application of Laws Act. This statute essentially provides that the common law of England and the doctrines of equity, together with statutes of general application as administered or in force in England prior to April 25 1951, shall be in force in Brunei.
The important proviso to this canon is that the said common law, doctrines of equity and statutes of general application shall only be in force so far as the circumstances of Brunei permit, and that they are also subject to be qualified by the local circumstances and native customs.
The system of civil law within civil courts in Brunei is generally administered by UK-qualified judges. A majority of leading private legal practitioners is also educated in the UK and obtained their professional qualifications there. In addition, there is also a large minority of lawyers who have qualified from the Malaysian Bar.
Until recent amendments to the Legal Profession Act, there was significant variation in the qualifications and experience of practicing advocates and solicitors in the country. As standards differ vastly between practicing lawyers in Brunei, and as international corporate clients generally prefer to engage lawyers from premier UK universities, many overseas corporate clients now demand full disclosure of professional qualifications and experience of prospective Brunei lawyers so as to determine the background of the prospective lawyer.
There is no requirement in Brunei for practicing lawyers to undergo continuous professional development. Only a small handful of lawyers who are concurrently practitioners in other jurisdictions undergo such development. The vast majority of law firms tend to deal with all areas of practice including civil and criminal law issues as well as issues of family law. A handful specialise in road traffic accident issues while an even smaller number of law firms specialise purely in corporate and commercial law activities and commercial arbitration.
Foreign judgments can be enforced in Brunei by statute as well as by common law rules. The Reciprocal Enforcement of Foreign Judgments Act 1996 (Revised Edition 2000) (CAP 177) is the enabling statute that allows the enforcement of foreign judgments in Brunei. The Brunei courts will automatically recognise and enforce the foreign civil and monetary judgments of any country that also recognises and enforces Brunei court judgments. Upon registration, the foreign judgment would become automatically enforceable by the Brunei courts.
The enabling Brunei legislation that gives effect to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards is the Arbitration Act 1994 (CAP 173 Rev. 1999). Reform however has already begun.
The Arbitration Order 2009 regulates domestic arbitrations and the International Arbitration Order 2009 regulates international arbitration. Both statutes are expected to come into force by November 2009 and are based on the UNCITRAL Model Law on international commercial arbitration. They also follow the principle that Brunei courts may only support, but not interfere with, the arbitration process.
Under the two new pieces of legislation, the Arbitration Association Brunei Darussalam (AABD) has been statutorily appointed as the default appointing body in the event of default or failure by the parties to appoint. Prior to the two statutes, the AABD was the sole arbitral institution in Brunei. Formed in 2004, the AABD’s objectives included assisting Brunei Darussalam in developing and providing advisory and assistance support in the field of arbitration.
The AABD was formed just after revision of the Brunei constitution and laws in 2004, which provided for complete immunity by the Government of Brunei Darussalam from lawsuits before the Brunei law courts. This means that all contractual matters involving the Government of Brunei are subject to arbitration. The AABD panel of arbitrators is kept to a very high standard, and there is wide choice of leading international arbitrators that are mainly non-Brunei nationals.