Definition
In the Sultanate of Oman, the major origins of law are Anglo-Saxon common law and Sharia law (“Islamic Religious Law”). Islam legislation in the Sultanate of Oman is the basis (in accordance with Article 2 of the Constitution of the Sultanate of Oman of 6 November 1996 (‘Constitution’)). In practice, though the Constitution affirms the independence of the judiciary in Oman, the Omani courts are subordinate to and subject to the Sultan’s power. In special cases, such as those relating to national security, he serves as a court of final appeal and intercedes.
In the Sultanate of Oman, the Constitution allows for two kinds of legislation. Firstly, the Sultan, which is known as a Royal Order, promulgates primary legislation. In addition, in compliance with ministerial decisions, secondary legislation is provided using the powers conferred by a Royal Decree.
The principles of legal professional privilege and “without prejudice” communications do not apply per se in many civil law jurisdictions in the MENA region and the parties have the right to use any document that could help their role in civil litigation. In the Sultanate of Oman, this is a role which does not have any express provision with regard to legal professional privilege. Instead, under Islamic Religious Law, lawyer-client legal professional privilege is interpreted.
Indeed, in the Sultanate of Oman, lawyers are bound by confidentiality requirements that, in certain cases, introduce principles comparable to legal professional privilege.
Legal professional privilege scope
Without the customer’s consent, legal professional privilege prevents all correspondence between a professional legal advisor and their client from being revealed. The right is for the client’s and not the lawyer’s sole benefit. The aim of this legal principle is to safeguard the access of a person to the justice system by ensuring that he or she is free to reveal all relevant information to his or her legal adviser without fear that such disclosure could have negative implications or prejudice them in the future.
If the attorney can display that evidence or information, a lawyer ceases to be bound by the provisions of legal professional privilege protection:
At the time it was revealed to the prosecutor, it was in the public domain;
- Entered the public domain through no fault of the lawyer after the time it was revealed to the lawyer; or
- Was free of any duty of trust in the hands of the lawyer at the time it was revealed to the lawyer, evidenced by documents at the time of disclosure.
Notwithstanding the attorney-client privilege, a lawyer may reveal such documents / information to the degree such disclosure is needed by a valid order of a court or other governmental body having jurisdiction, given that the lawyer provides the client with fair prior written notice of such disclosure and makes a reasonable effort to obtain a protective order preventing or restricting
In the Sultanate of Oman, the principle of legal professional privilege is restricted only to the professional relationship between a lawyer and his client, by the duty of the lawyer to keep all details revealed by his client confidential (pursuant to Article 44 of the Omani Advocacy Law). The partnership between a lawyer and his client also benefits from a restricted form of privilege since the parties are separate persons and, of course, the lawyer owes the client a duty of confidentiality.
It is advisable that, if the parties attempt to resolve their dispute in Oman, they should qualify for some sort of contact with a declaration that any offer or communication does not constitute an admission of liability. The Parties should also seek an assurance that, in any future proceedings, any information found in such communications would not be used as evidence.
The same privilege rights do not tend to extend to in-house legal counsel representing the company’s officers, directors or staff, since they are not independent of the client. It is, however, possible to enter into a confidentiality arrangement between the employer and the employed in-house legal counsel to protect this information.