SAUDI ARABIA Law and Practice Contributed by: Andreas Haberbeck, Derayah LLPC
supported by reasons why the documents are confi- dential. Failure to disclose documents as ordered by the court may be treated as circumstantial evidence by the court. 5.2 Discovery and Third Parties Under the Evidence Regulation, 2021, a party can apply for an order to: • join another party in order to compel them to pre- sent a document in their possession that is related to the action; or • order any governmental authority to present any information or documents in its possession relat- ing to the action, without prejudice to the relevant regulations. 5.3 Discovery in This Jurisdiction Mandatory disclosure of documents is a new develop- ment. To get an order for disclosure: • the documents must be particularised by specific identity or by type; • the documents must have a connection with the commercial transaction, or result in a fact therein being brought to light; and • they must not be of a confidential character. 5.4 Alternatives to Discovery Mechanisms A claimant is required to support their claim using the documents they possess, while a defendant must defend their case with their own documents. Either party or the court may ask a party to affirm or deny the claim under oath. This is a serious procedure that was rarely used in the past but has become more common in recent years. If a claim is denied on oath or the claimant fails to confirm their case on oath, the case is dismissed, with only limited grounds for appeal. 5.5 Legal Privilege The Legal Profession Regulation, Royal Decree No M/38 dated 28 Rajab 1422 Hejra, corresponding to 14 October 2001, provides that lawyers must treat information received from clients as confidential. Out- side the Commercial Courts, there are no rules grant- ing legal privilege to attorney-client communications.
Under the Evidence Regulation, 2021, a party in a commercial action may oppose an application for dis- closure on the basis of confidentiality. In principle, it is possible that this may be extended to attorney-client communications if these are appropriately marked. 5.6 Rules Disallowing Disclosure of a Document The Evidence Regulation, 2021, provides that an order for disclosure may not be made if the document is confidential under general rules of law or by an agree- ment between the parties. The Evidence Regulation, 2021, further provides that access to the document in question must not violate any right of commercial secrecy or any other connected rights. Since these provisions are new, no judgments giving guidance on their interpretation have been published at the time of writing. 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief It used to be difficult, but not impossible, to obtain injunctive relief through the Saudi Arabian courts. In recent years, it has become easier to obtain orders for injunctions and specific performance. The Civil Transactions Regulation, 2023, has a chap- ter setting out rules governing specific performance. Orders for injunctive relief may freeze assets or ban a defendant from travelling. 6.2 Arrangements for Obtaining Urgent Injunctive Relief Injunctive relief can be granted at a single hearing. Before the Commercial Courts, such hearings must take place within three days of the referral. Under the Commercial Courts Regulation, 2020, the court may rule on an expedited application outside working hours or during holidays. 6.3 Availability of Injunctive Relief on an Ex Parte Basis Injunctive relief can be obtained on an ex parte basis.
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