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Major Provisions and Changes in Saudi Arabia’s Law of Evidence

Sep 26, 2022

Major Provisions and Changes in Saudi Arabia’s Law of Evidence

Continuing with reforms in the judiciary and in line with Vision # 2030, Saudi Arabia promulgated the Law of Evidences on 2 January, 2022 which was published in the official gazette on 7 January, 2022 (the “Law”). The Law has become effective as of 7 July, 2022.

In essence, the Law is a comprehensive law codifying the entire process and procedures in handling evidentiary issues related to commercial and civil matters[1]. The Law covers documentary evidence, digital or electronic evidence, admissions, oaths, witness testimonies, inspection, and expert reports. The Law prescribes and fixes fines for lapses, defaults, attempts to falsify or lay false accusations, as well as provides for parties to claim damages for being harmed besides the provision of criminal proceedings for forgery and falsification of evidence.

The Law revokes all the provisions related to evidence contained in the Law of Civil Procedures (58 articles) and the Law of Commercial Courts (19 articles). While the Law has maintained a few provisions available under the aforesaid two laws, there are sweeping changes in the means and mechanism to deal with evidence in light of the continual development in the civil and commercial arenas.

This article highlights major provisions and changes in the Law.

General Provisions

First and foremost, the Law is based on the premise that the plaintiff shall be obliged to prove his right and the defendant shall be entitled to deny the same thereby reiterating the universal principle that the burden of proof lies on the plaintiff[2].

The Law provides that only evidences which are related to the issues of the subject of the lawsuit shall be acceptable and the Law specifically disallows judges to rule on cases based on their personal knowledge[3].

Borrowing the principle of parties’ autonomy from the arbitration principles, the Law obliges courts to accommodate any agreement between the parties regarding evidentiary issues; provided the agreement is in writing[4], a provision which was hitherto not available in the court’s procedural laws. Similarly, it requires the courts to apply the conclusions of the expert in full if the parties had such an agreement before the lawsuit was raised.

The Law allows the court to reject wholly or partially the outcome of any evidentiary procedure provided it narrates the reasons for rejection in the judgment.[5]

Any procedure conducted concerning a party under oath or any submission of witness statements shall be conducted before the court. However, in the event, the relevant party submitting his witness or being under oath resides in a jurisdiction outside the Saudi Arabia, and the court is unable to move to the place of residence, the witness statement or taking of evidence shall be conducted either by the court sending a representative judge to the place of residence or by transferring the witness or party under oath to a relevant court in his/her place of residence by a transfer decision.[6]

The Law enables the courts to consider evidentiary procedures taken outside Saudi Arabia as long as it does not violate public order.[7]

Admissions

An admission shall be considered judicial only if the party admits before the court during the hearings of the subject case; it shall be treated as conclusive.[8] If an admission is made outside the court or during other hearings, the admission shall not be treated as judicial.[9]

An admission shall only be accepted if made by the party having the full capacity and it can be explicit or implicit, and oral or written[10]. Further, the admission shall not be accepted or approved if the facts leave a different appearance than what was provided in the admission. [11]

An admission which cannot be accepted as judicial may be considered a testimony subject to examination and compliance with the provisions related to acceptance of testimonies[12].

Interrogatories

Besides the court interrogating a party on its own or upon request by the other party, the parties to the dispute may interrogate each other directly[13], a provision which was not available in the Law of Civil Procedures[14]; although the parties in the commercial lawsuits could interrogate directly under the supervision of the judge.

The parties will be required to answer in the same hearing unless the court provides them time for answering.[15]  A party may object to a question addressed to it; however, it will have to give reasons for its objection. The court may not allow questions if not related to the case or deemed to be non-productive in the case or for any other valid reason[16], a provision which was not provided in the previous laws.

The Law requires that whoever is summoned by the court for questioning, the person will be obliged to appear and answer the questions during the hearing scheduled. In case a person absents to provide answers without any acceptable excuse or avoids answering, the court may conclude what it deems appropriate and consider witness testimonies and other evidence which are otherwise not permissible on those issues.[17]

Documentary Evidences

The Law defines in greater detail the manner in which documentary evidence shall be dealt with and what shall constitute official documents and non-official documents; their validity, importance and means of challenges available to parties.

An official document shall be considered complete evidence for the purpose presented as long as the document was prepared by the entity having jurisdiction or appointed to do so[18].  Unlike the Civil Procedures Law, which requires at least an attested true copy of an official document to be accepted as documentary evidence, the new Law allows a copy of the official document in case the original is not available as long as there are no doubts of it being not identical to the original[19].

The Law stipulates that documentary evidence shall be considered duly issued by the person unless he denies the writing, signature, or seal contained therein. Objections on the veracity or authenticity of a non-official document shall not be entertained if the party objecting it had discussed the subject contained in the document earlier.

The Law stipulates that the official registers or records which a merchant is statutorily obliged to maintain shall not be considered as evidence against non-merchants.  However, such a register can be presented as evidence by a merchant who maintains it against another merchant whose status as evidence would become void if it is proved otherwise by other evidence including the official register of the opponent merchant.[20]

A party in a commercial dispute may request the court to oblige the opponent to present documentary evidence held by him in the cases where the document was jointly entered or if the opponent had relied on it during any stage of the lawsuit. However, the documentary evidence that a party is requesting to be provided should not have the element of confidentiality by virtue of an agreement between the parties, or the access to such a document should not result in violation of the party’s right to confidentiality, trade secret, or related rights.[21]

The Law has laid detailed provisions to deal with the challenges to the correctness of written documents including allegations of fabrication and forging of documents. It has set penalties in either case as well as provides for criminal prosecution and damages to parties occurring due to presentation of false documents as evidence and penalties for laying accusation of forgery (if proven wrong).

Digital Evidence

One of the important sections in the Law relates to the treatment of ‘digital evidence’ as documentary evidence. The provision is briefly accommodated in the Commercial Courts Law and the Civil Procedural Law is devoid of it.  The Law includes under digital evidence classification any data to be generated, issued, received, saved, or notified by an electronic instrument, which may be retrieved or obtained in an understandable manner, including the digital record, digital written instrument, digital signature and digital messages and all digital or electronic communication including emails.[22] They shall all be treated as documentary evidence in the manner as provided by the Law for such evidence.

The Law recognizes digital evidence and gives it the same power of evidence as the traditional written instrument (official and customary)[23].

Digital evidence shall have the same power as the official and customary evidence if[24]:

  • It is issued in compliance with the electronic business transactions system
  • It is derived from a digital means or device agreed upon in the agreement, subject of the dispute
  • It is derived from authorized digital means or a digital means in common use.

The party which contests the veracity of the digital document will carry the burden to prove their contention in the same manner as stipulated for other documentary evidence.[25]

The Law stipulates that the Minister of Justice, in coordination with the Saudi High Judicial Council, shall issue the necessary regulations of the digital evidence procedures, which is considered an important issue to strengthen the confidence of the public in the digital instrument. [26]

Witness Testimony

One of the key features of the Law is limiting witness testimony to dispositions below the sum of SR.100, 000.00.  For dispositions which exceed SR.100, 000.00 or where the amount is unspecified, the courts shall require documentary evidence in case there is no agreement in this respect between the parties.[27] This provision will drastically reduce the incidences of false claims and claims which do not have strong evidence.

Even in cases where the amount of disposition does not exceed SR.100, 000.00, witness testimony shall not be accepted if the Law requires the evidence to be in writing or if it is in conflict or exceeds what is contained in the documentary evidence thereby reducing the weightage of witness testimonies.

As an exception, the Law allows witness testimony in cases where the plaintiff had lost the documentary evidence due to a reason not related to him or where the principal ground of the claim was proven through documentary evidence.

The Law restricts persons having interest or benefits from the lawsuit nor from parents or grandparents for children or grandchildren and vice versa as well as the wife for the husband and vice versa.

It sets procedures and requirements for parties to present witnesses for testimonies.  Similar to the provision allowing a party to interrogate the other party, it allows parties to address questions to the witness or cross-examine witnesses. The other party may object to a question provided that it gives reasons for the objection. A witness may decline to answer a question, but he will have to provide reasons for not answering.

Proof and Res Judicata

Res Judicata means that judgments are absolute proof as to the matters finally decided by courts or in arbitration. The Law of Evidences reiterates this provision and provides that no evidence of any kind in refuting a judgment shall be admitted, provided that the dispute is between the parties themselves acting in the same capacities and having the same object and the same cause. [28]  Besides, the court, on its own initiative, without request from the litigants, may establish the incontestable character of such evidence.

Customs and Norms

Customs and norms between parties would constitute valid evidence provided that there is no agreement between the parties otherwise or it is in conflict with the public law. The Law stipulates that in case of conflict, the customs and practices between the parties shall prevail over the general custom.

The provision of the Commercial Courts Law stipulated in article 57 that it is permissible to adopt the commercial custom, or the custom known by parties has been repealed and it is provided it is permitted to rely on custom in all commercial and non-commercial transactions.

Oath

Oath is an established method of evidence in Islamic jurisprudence and is used in the Saudi judiciary for the settlement of cases.

There are two types of oath; the first being “Decisive Oath”: Decisive Oath is the oath taken by a defendant to refute the claim of a plaintiff.[29] The defendant, instead of taking an oath, may request the court that the plaintiff is directed to take the oath for asserting the truth of his claim according to the provisions of the Law of Evidence. The adopted rule in this type of oath is that whoever is requested to take an oath, the judgment should be in his favor if he takes the oath. In the event that such a person rejected to take oath and not requested the other party to take oath, he will be adjudicated after being warned.

The other type of oath is “Supplementary Oath”: Supplementary oath is the oath to be taken by the plaintiff to complete his claim where the plaintiff has no right to request the defendant to take oath.[30]

The Law deals at length with prescribing rules for taking and administering oaths.  While it stipulates that an oath by a defendant for negating a claim shall be treated as a conclusive oath which can be objected to by the plaintiff, an oath by a plaintiff shall be considered supplementary to complement the evidence presented by the plaintiff and which cannot be objected to by the defendant. The person taking oath must have the capacity to dispose on the matter on which he is taking the oath and the person cannot delegate others to take oath on his or her behalf.  The court may decline oath if it is not related to the case or believes it not to be productive or non-acceptable.

In case a plaintiff is not able to provide documentary or other evidence to support his claim, he may request the defendant to swear. If he refuses to swear, the plaintiff may take an oath. If he too declines, the claim shall be dismissed by the court. A plaintiff may abort evidence presented to the court and request an oath from the defendant instead.

Conversely, a plaintiff who had requested an oath before presenting evidence may abort his request and replace it with evidence after notifying the court in this regard.  The Law provides that a party may seek compensation in case a criminal court rules that the other party had lied while taking oath as well as object to the ruling issued on the basis of that oath in which there was an element of the lie as confirmed by the ruling issued by the criminal court.

Inspection

A court may, on its own accord or upon request by a party, decide to conduct an inspection by notifying the parties at least 24 hours in advance. It may appoint an expert to assist it or hear any witness it may deem appropriate.[31]

Experts

The Law stipulates in great detail the requirements and procedures of appointing experts to review technical issues surrounding the case as well as the obligations of the expert and the litigants.

The court may, on its own accord, or upon request by a party, appoint an expert or several experts to provide their opinion on technical issues related to the dispute.[32] The Law prescribes in detail the responsibility and powers of the expert so appointed as well as the timelines, disqualification, and the rights of the parties in seeking clarifications from the expert. It also prescribes fines not exceeding SR.10, 000.00 upon a litigant who caused a delay in the submission of a report by the expert and a similar fine upon the expert if he delayed in submitting the report within 15 days from the date set for completion of the task.

In case of agreement by parties in the selection of experts, the court will endorse it. Similarly, if agreed by the parties (before initiation of the case), the courts shall be obliged to apply the results or conclusions presented by the experts in the ruling on the case as long as it does not violate public order, an autonomy to the parties which was hitherto not available.

However, in all other cases, courts shall not be obliged to accept the conclusions of the expert. Nevertheless, the courts are required to narrate the reason for not accepting some or all conclusions of the experts in their judgments, a provision which does not exist in any of the laws or court procedures. The court may also rely on an expert’s report submitted in another lawsuit, however, without prejudice to the litigants’ right to discuss and raise objections.

Conclusion

In short, the Law makes the application of procedures related to evidence clear and enables parties to determine the types of evidence to present before the court and the defence available to them beforehand.  It also provides parties to agree on evidentiary procedures beforehand as well as the autonomy to agree that they will consider the expert’s report as binding and the courts shall be obliged to issue rulings based on such reports.

Al Ghazzawi & Partners

[1] Article 1 of the Law

[2] Article 2 of the Law

[3] Article 2 (2) (3) of the Law

[4] Article 6 of the Law

[5] Article 9 (2) of the Law

[6] Article 11 (1) (2) of the Law

[7] Article 13 of the Law

[8] Article 14 (1) of the Law

[9] Article 14 (2) of the Law

[10] Article 16 of the Law

[11] Article 16(2) of the Law

[12] Article 19 of the Law

[13] Article 20 of the Law

[14] Section 9 of the law of civil procedures

[15] Article 23 of the Law

[16] Article 24 of the Law

[17] Article 21 of the Law

[18] Article 26 (1) of the Law

[19] Article 27 of the Law

[20] Article 31 of the Law

[21] Article 36 of the Law

[22] Article 45 of the Law

[23] Article 59 of the Law

[24] Article 57 of the Law

[25] Article 58 of the Law

[26] Article 126 of the Law

[27] Article 66 of the Law

[28] Article 86 of the Law

[29] Article 92 of the Law

[30] Article 92 of the Law

[31] Article 108 of the Law

[32] Article 110 of the Law

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