SAUDI ARABIA Law and Practice Contributed by: Andreas Haberbeck, Derayah LLPC
possession and the defendant must defend the case on the basis of the documents that are in their possession. Under the Evidence Regulation, 2021, a party may request disclosure of a document if the oth- er party has relied on it in the proceedings, or if it is a “joint document”, such as documents that are in favour of both parties or are evidence of their mutual rights and obligations. In commer- cial cases, a party has a wider right to request their opponent to disclose a document that has a connection with the action. Such documents must be particularised by spe- cific identity or by type; they must have a con- nection with the commercial transaction or result in a fact therein being brought to light; and they must not be of a confidential character. A plea of confidentiality must be supported by reasons why the documents are confidential. 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 present a document in their possession that is related to the action; or • order any governmental authority to present any information or documents in its posses- sion relating to the action, without prejudice to the relevant regulations. 5.3 Discovery in This Jurisdiction Mandatory disclosure of documents is a new development. 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 must prove their claim on the basis of the documents in their possession and a defendant must defend the claim on the basis of the documents in their possession. A litigant or the court may ask a party to affirm or deny the claim on oath, which is a solemn procedure and used to be rarely invoked 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 dis- missed, with only limited grounds for appeal. 5.5 Legal Privilege The Legal Profession Regulation, Royal Decree No M/38 dated 28 Rajab 1422 Hejra, corre- sponding to 14 October 2001, provides that law- yers must treat information received from clients as confidential. Other than before the Commer- cial Courts, there are no rules that grant legal privilege to attorney-client communications. Under the Evidence Regulation, 2021, a party in a commercial action may oppose an application for disclosure 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
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