Judicial Sequestration Under Bahraini Law: A Protective Legal Tool
Our Associate Nawra Abdulla examines the concept of judicial sequestration under Bahraini law, highlighting its role in protecting disputed assets through temporary court-appointed guardianship.
Nawra Abdulla (nabdulla@raeesandco.com) – Associate
Judicial sequestration, also known as judicial guardianship, is a legal mechanism designed to protect property or assets that are subject to a legal dispute, particularly when there is imminent risk of harm or mismanagement. This form of court intervention plays a critical role in safeguarding the rights and interests of parties involved in disputes. It typically arises in cases of mismanagement or absence of agreement between the parties; it functions as a temporary and protective measure aimed at preserving the property in question until the court issues its final ruling of ownership. This article explores the concept of judicial sequestration under Bahraini law, focusing on its legal definition, conditions for its application and duties of appointed custodians.
Definition
The concept of judicial sequestration has been clearly defined by the Egyptian Scholar Dr. Abdel Razzaq Al Sanhoury as “Guardianship is defined as the placement of property—over which a dispute exists or where the rightful ownership is uncertain and subject to imminent risk—into the hands of a neutral guardian. This guardian is entrusted with the preservation, management, and eventual return of the property, along with rendering a full account to the party ultimately determined to be entitled to it. Such custody may arise either by mutual agreement between the disputing parties, in which case it is termed contractual custody, or by judicial order, in which case it is known as judicial custody.” Judicial sequestration is, by nature, a temporary and protective measure. It does not resolve the underlying legal dispute or determine ownership, instead, its core function is to preserve the status quo, protect the property from harm and prevent unjust outcomes that could result from delays in litigation or misuse of asset. A key requirement for judicial sequestration is urgency as commonly understood as imminent danger, where the property is at immediate risk and cannot be safeguarded through regular legal procedures.
When Is Judicial Sequestration Applied
Courts impose judicial sequestration when specific conditions are met. Its purpose is to ensure that disputed property is not misused, destroyed, or wrongfully transferred before a court judgement is rendered. As a temporary and precautionary measure, it aims to preserve the rights and interests of the parties involved particularly where legal proceedings may take a long time to conclude. When these conditions are present, the court appoints a neutral custodian to manage and protect the disputed property throughout the course of litigation. It is usually applied in the following cases:
- Dispute over ownership or possession where there is a legal conflict concerning the rightful ownership or possession of property, and the matter remains unresolved.
- Imminent danger to the safety or value of the disputed property.
- Risk of irreparable harm resulting from delays in litigation proceedings
- Lack of mutual agreement between the parties in relation to the management of the disputed property.
Judicial Sequestration under Bahraini Law
Judicial sequestration is governed primarily by Article 678 of Decree No. 19/2001 promulgating Bahrain Civil Code. The provision defines it as follows “judicial custody is the placement of disputed property in the custody of a trustee, if keeping it in the hands of the possessor poses a danger to the party claiming a right to it. The trustee shall be responsible for preserving, managing, and returning the property to the person who proves to have the rightful claim. Sequestration may be established by agreement or ordered by the court.” This Article establishes the legal foundation for judicial sequestration, emphasizing two key elements: the existence of a dispute over property and the presence of a potential risk if the property remains with the current possessor. In addition, Article 180 of Decree Law No. 12/1971 promulgating Civil and Commercial Procedures that allows the judge of urgent matters to appoint a custodian when the property is exposed to risk and there is no agreement between the parties. Together, these provisions establish that the application of judicial sequestration is contingent upon the absence of agreement between the parties and the existence of a real and immediate threat to the disputed property.
Duties of the Judicial Custodian
The judicial custodian has a fiduciary duty to: (i) act impartially and in good faith, (ii) Maintain and manage the property, (iii) keep detailed records and provide regular reports to the court, and (iv) return the property once the rightful owner is legally determined. Failure to comply with these obligations can result in legal consequences, including removal from the role or liability for any losses caused by negligence or misconduct.
Court Rulings
Bahraini Court of Cassation has reinforced and clarified the principle of judicial sequestration through several key rulings:
- Challenge No. 938 J.Y 2014 wherein the court upheld the application of Articles 180 and 678, the court stated that “Although determining the existence of a serious dispute—thus establishing the element of urgency that justifies the jurisdiction of the summary (urgent) court to grant the requested interim measure without affecting the substance of the right—is a matter of fact that the summary judge has the sole discretion to assess, and such assessment is not subject to review by the Court of Cassation, this discretion must, however, be reasonably and properly exercised.”
- Additionally, the Bahraini Court of Cassation stipulated the definition of judicial guardianship as known as judicial sequestration in Challenge No. 415 J.Y 2012 wherein it ruled “Judicial sequestration over property that is subject to a dispute is merely a provisional, precautionary, and exceptional measure. It results in the removal of the property from the possession of its legal holder. Therefore, it may not be resorted to unless that holder has mismanaged or failed to preserve the property in a way that endangers the rights of interested parties. In such cases, it becomes necessary to entrust the property to a custodian until the risk subsides.”
Concluding Remarks
Judicial sequestration in Bahrain serves a vital safeguard method to protect the rights and interests of parties in unresolved disputes that are facing urgent imminent risk, by placing the disputed assets or personal affairs under temporary court-supervised management until a judgement is issued. The system ensures that fairness and justice are maintained.
For more information, please contact us on info@raeesandco.com