Judges in the local ‘onshore’ courts of the Arabian Gulf are generally uncomfortable with witness testimony in litigation proceedings. In fact documentary evidence is often the only evidence that will be accepted.
In a region where the line between public and private domain is blurry and shifting, where information is readily offered in conversation but rarely in writing, that would appear to create a unique set of challenges for litigators and investigators.
But there is an upside.
Despite their insistence on documentary material, judges are actually less likely to press parties on the provenance of their evidence. If a document can be authenticated, how it was obtained is less important.
What is more, the court will typically appoint an expert to determine technical matters. Those experts are likely to adopt a flexible approach to any evidence with which they are presented. They are also often prepared to meet and discuss the issues with witnesses.
This is not an invitation to submit illegally obtained evidence. The potential risks remain significant; to the client’s standing, to their reputation, and to their case if they are compelled to waive privilege (and it does not apply to the new Common law courts of the DIFC, ADGM and QFC). However it does amount to a loosening of the rules of evidence.
Savvy litigators and investigators can consider a wider range of options when developing evidence and witnesses for local proceedings in the Middle East. Even if witnesses are unwilling or unable to go on the record, documents in their possession may be admissible and their views can sway a court expert.
Nicholas Bortman, co-founder, has worked with regional and global law firms to obtain and prepare evidence for use in litigation in the United Arab Emirates and the Kingdom of Saudi Arabia.