Brunei legislation guide
By Professor Dr Colin Ong
Dr Colin Ong Legal Services
Tel: +673 2 420 913 Fax: +673 2 420 911 Email: onglegal@brunet.bn
Traditionally, many of the statutory laws of Brunei Darussalam that regulate business activities and disputes are based on 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 for all matters apart from criminal law cases.
For civil matters, parties to a dispute can mutually agree before the commencement of a trial or before a 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 Court 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 be in force only so far as the circumstances of Brunei permit and that they are also subject to be qualified by local circumstances and native customs.
The system of civil law within the civil courts is generally administered by UK-qualified judges. The majority of leading private legal practitioners have generally been educated and obtained their professional qualifications in the UK. There is a large minority of lawyers who have also qualified from other countries such as Malaysia. As standards and experiences differ vastly between practicing lawyers in Brunei, there is a view that international corporate clients prefer to engage lawyers from premier UK universities or have work experience from law firms in the UK or Singapore. It has now almost become standard practice for many overseas corporate clients to demand full disclosure of professional qualifications and experience of prospective Brunei lawyers. It is not unknown for some law firms to be without professional indemnity insurance cover.
There is no requirement in Brunei for practicing lawyers to undergo continuous professional development. Less than a handful of lawyers who are concurrently practitioners in other jurisdictions undergo such development. The vast majority of law firms tend to deal with a range of practice areas including civil and criminal law as well as family law. A smaller handful specialise in road traffic accident issues while an even smaller number 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 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. Currently only judgments from Malaysian and Singapore courts are recognized under this legislation and this has prompted the insertion of arbitration clauses into most commercial agreements.
Brunei is a signatory state to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The Arbitration Order 2009 regulates domestic arbitrations, and the International Arbitration Order 2009 regulates international arbitration. The statutes came into force in February 2010 and both legislation are based on the UNCITRAL Model Law on International Commercial Arbitration. They follow the principle that the Brunei courts may only support but not interfere with the arbitration process.
The Arbitration Association Brunei Darussalam (AABD) has been statutorily designated under both the arbitration statutes as the default appointing body for arbitrators in the event of a default or a failure by the parties to mutually agree to appoint an arbitrator or presiding arbitrator. The AABD is the sole arbitral institution in Brunei. It was formed in 2004 partly to assist Brunei Darussalam in developing and providing advisory and assistance support in the field of arbitration. It was also formed just after revision of the Brunei Constitution and laws of Brunei Darussalam in 2004, which provided for complete immunity for the Government of Brunei Darussalam from being brought before the Brunei law courts. This has forced parties to draft appropriate Brunei arbitration clauses in all agreements involving the Government of Brunei and has also led to a similar practice concerning negotiation of contracts between Brunei and foreign parties. The AABD panel of arbitrators is kept to a very high standard and there is a wide choice of leading international arbitrators who are mainly non-Brunei nationals.