Gathering Evidence in Aid of Foreign Litigation Guide |
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Sri Lanka |
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(Asia Pacific)
Firm
D. L. & F. De Saram
Contributors
Dasuni Wijayasriwardena |
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| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes. |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | Yes, Sri Lanka ratified the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”) on October 30, 2000 (subject to specified reservations). The said convention was enacted into the Sri Lankan legal system by way of the Mutual Assistance in Civil and Commercial Matters Act No. 39 of 2000 (hereinafter referred to as “the Act") in Part III of the same. (Mutual assistance in respect of criminal matters is regulated by the Mutual Assistance in Criminal Matters Act No. 25 of 2002). |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | Yes, The Secretary to the Ministry of the Minister in charge of the subject of Justice is the Central Authority for the purposes of the Act. All requests made under Part III of the Act (e.g., taking of evidence in Sri Lanka) by the appropriate authority of a state listed under the legislation, have to be made to this Central Authority. Upon review of the request, the Central Authority may grant written authorization to the relevant District Judge to carry out the same in accordance with the directions provided by the said authority (Section 10(3)). |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | Section 2 of the Act inter alia provides for the examination of witnesses and the obtaining of evidence, documents and other articles and the provision of documents and other records. |
| Who bears the burden of showing whether any privileges apply? | The Act provides that a person who is required to give evidence before a District Judge may refuse to give such evidence if he is entitled to do so under the law of Sri Lanka or under the law of the specified country (Section 10(6)). Therefore, the obligation to show that a privilege is applicable is on the person who is required to give evidence before the District Court pursuant to an authorization for taking of evidence. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | Yes, the request to the Central Authority must contain all the necessary information including the type of evidence that is to be taken (Section 10(2) (c) and (d)). It is also worth noting that the primary concern of the Sri Lankan Court would be whether the taking of evidence and/or questions put is prohibited or not, from being received in Sri Lanka. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | Yes, depositions are permitted by way of commission and Section 179 of the Civil Procedure Code is the relevant statute to be used in respect of requests made under Section 10(7) of the Act. While until recently, depositions were usually by parties being physically present, with the pandemic, rules were brought in making provisions for evidence in court hearings to be taken remotely. However, it must be pointed out that these rules are in the early stages of implementation in Sri Lanka and it is yet to be seen how they would be utilized under the Central Authority for requests made under the Act. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | The central authority may reject a request under the act from the specified foreign authority under Section 13 of the Act, including if the request poses a threat to Sri Lanka's sovereignty or security, or if the authority believes the request falls outside of the judiciary's purview. For the purpose of obtaining evidence by a district judge and the transmission of that evidence, the central authority must provide written authorization. Section 6 of The Mutual Assistance in Criminal Matters Act provides that a request by the appropriate authority of a specified country for assistance under this Act can be refused, in whole or in part, if, in the opinion of the Central Authority, the request relates to the prosecution or punishment of a person in respect of an act or omission which, if it had occurred in Sri Lanka would not have constituted an offense under the law of Sri Lanka; or the request relates to the prosecution or punishment of a person for an offense of a political character; or the request relates to the prosecution or punishment of a person in respect of an act or omission which if it had occurred in Sri Lanka, would have constituted an offense only under the military law of Sri Lanka; or the request relates to the prosecution of a person for an offense where, such person has been acquitted or convicted in accordance with the law of Sri Lanka in respect of that offense or another offense constituted by the same act or omission as that constituting the offense: or compliance with the request would be contrary to the Constitution of Sri Lanka or prejudicial to national security, international relations or public policy: or based on substantial grounds, compliance with the request would facilitate the prosecution or punishment of or cause prejudice to any person on account of his race, religion, language, caste, sex, political opinions or place of birth. |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | A citizen in Sri Lanka may voluntarily give evidence as aforesaid. In addition to the process specified above, a citizen is also subject to the laws and requirements relevant to that proceeding. However, procedural requirements (such as service of a summon to a witness) of the home court may have to be complied with in conformity with the laws of the home state. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | A party may give evidence voluntarily in an arbitration. Furthermore, any requests/notices/summons for production of evidence for a particular witness would generally have to be dispatched directly to the witness or in accordance with the rules governing the particular arbitration in issue. |
Gathering Evidence in Aid of Foreign Litigation Guide
Sri Lanka
(Asia Pacific) Firm D. L. & F. De SaramContributors Dasuni Wijayasriwardena
Updated 25 Mar 2022Yes.
Yes, Sri Lanka ratified the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”) on October 30, 2000 (subject to specified reservations).
The said convention was enacted into the Sri Lankan legal system by way of the Mutual Assistance in Civil and Commercial Matters Act No. 39 of 2000 (hereinafter referred to as “the Act") in Part III of the same. (Mutual assistance in respect of criminal matters is regulated by the Mutual Assistance in Criminal Matters Act No. 25 of 2002).
Yes, The Secretary to the Ministry of the Minister in charge of the subject of Justice is the Central Authority for the purposes of the Act.
All requests made under Part III of the Act (e.g., taking of evidence in Sri Lanka) by the appropriate authority of a state listed under the legislation, have to be made to this Central Authority. Upon review of the request, the Central Authority may grant written authorization to the relevant District Judge to carry out the same in accordance with the directions provided by the said authority (Section 10(3)).
Section 2 of the Act inter alia provides for the examination of witnesses and the obtaining of evidence, documents and other articles and the provision of documents and other records.
The Act provides that a person who is required to give evidence before a District Judge may refuse to give such evidence if he is entitled to do so under the law of Sri Lanka or under the law of the specified country (Section 10(6)). Therefore, the obligation to show that a privilege is applicable is on the person who is required to give evidence before the District Court pursuant to an authorization for taking of evidence.
Yes, the request to the Central Authority must contain all the necessary information including the type of evidence that is to be taken (Section 10(2) (c) and (d)).
It is also worth noting that the primary concern of the Sri Lankan Court would be whether the taking of evidence and/or questions put is prohibited or not, from being received in Sri Lanka.
Yes, depositions are permitted by way of commission and Section 179 of the Civil Procedure Code is the relevant statute to be used in respect of requests made under Section 10(7) of the Act.
While until recently, depositions were usually by parties being physically present, with the pandemic, rules were brought in making provisions for evidence in court hearings to be taken remotely. However, it must be pointed out that these rules are in the early stages of implementation in Sri Lanka and it is yet to be seen how they would be utilized under the Central Authority for requests made under the Act.
The central authority may reject a request under the act from the specified foreign authority under Section 13 of the Act, including if the request poses a threat to Sri Lanka's sovereignty or security, or if the authority believes the request falls outside of the judiciary's purview. For the purpose of obtaining evidence by a district judge and the transmission of that evidence, the central authority must provide written authorization.
Section 6 of The Mutual Assistance in Criminal Matters Act provides that a request by the appropriate authority of a specified country for assistance under this Act can be refused, in whole or in part, if, in the opinion of the Central Authority, the request relates to the prosecution or punishment of a person in respect of an act or omission which, if it had occurred in Sri Lanka would not have constituted an offense under the law of Sri Lanka; or the request relates to the prosecution or punishment of a person for an offense of a political character; or the request relates to the prosecution or punishment of a person in respect of an act or omission which if it had occurred in Sri Lanka, would have constituted an offense only under the military law of Sri Lanka; or the request relates to the prosecution of a person for an offense where, such person has been acquitted or convicted in accordance with the law of Sri Lanka in respect of that offense or another offense constituted by the same act or omission as that constituting the offense: or compliance with the request would be contrary to the Constitution of Sri Lanka or prejudicial to national security, international relations or public policy: or based on substantial grounds, compliance with the request would facilitate the prosecution or punishment of or cause prejudice to any person on account of his race, religion, language, caste, sex, political opinions or place of birth.
A citizen in Sri Lanka may voluntarily give evidence as aforesaid. In addition to the process specified above, a citizen is also subject to the laws and requirements relevant to that proceeding.
However, procedural requirements (such as service of a summon to a witness) of the home court may have to be complied with in conformity with the laws of the home state.
A party may give evidence voluntarily in an arbitration. Furthermore, any requests/notices/summons for production of evidence for a particular witness would generally have to be dispatched directly to the witness or in accordance with the rules governing the particular arbitration in issue.