Gathering Evidence in Aid of Foreign Litigation Guide |
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Iceland |
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(Europe)
Firm
LOGOS
Contributors
Ólafur Eiríksson |
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| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes, Iceland permits the gathering of evidence in aid of foreign litigation. |
| 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. | Iceland has been a party to the Hague Evidence Convention since January 9, 2009. Further, Iceland has been a party to the Nordic Convention on Mutual Assistance in Judicial Matters between the governments of Iceland, Denmark, Finland, Norway and Sweden since July 22, 1975 (the “Nordic Convention”) and is a party to the European Convention on Mutual Assistance in Criminal Matters (the “European Convention”), which was originally implemented into Icelandic legislation with Act no. 13/1984 on the Extradition of Criminals and Other Assistance in Criminal Proceedings. Iceland is also a party to other conventions concerning mutual assistance in judicial matters. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | Yes, the request for gathering evidence in civil proceedings is handled by the District Commissioner of Sudurnes. Requests for gathering evidence in criminal proceedings shall be sent to the State Prosecutor. However, if there is no agreement in force with the state requesting assistance, the request shall be sent to the Ministry of Justice. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | The letter of request shall indicate the evidence to be obtained, according to the Hague Evidence Convention. Icelandic law is applied as to the methods and procedures to be followed in executing the letter of request, unless the requesting state has requested that a special procedure will be followed, that is not incompatible with Icelandic law. Information that can be sought can include documents, written questions and depositions. If a request for assistance is made on the basis of the European Convention, the request shall follow the procedure indicated by the requesting state, provided that it is not contrary to Icelandic legislation. According to Icelandic legislation, this could include requests for documents, written questions and depositions. |
| Who bears the burden of showing whether any privileges apply? | A witness is entitled to claim privilege from giving any evidence that he or she could not be compelled to give under Icelandic law or under the law of the requesting state. Icelandic legislation does not contain specific rules on who bears the burden of showing whether any privileges apply, as the rules concerning the grounds to claim privilege are in principle objective and therefore neither party should need to demonstrate specifically whether privileges apply. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | No, although such a request should be in accordance with the law of the requesting state. However the request needs to be in accordance with Icelandic procedure and, according to Act no.13/1984, a request may not be granted if the act which it concerns, or a comparable act, is not punishable under Icelandic law. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | Yes, according to Icelandic procedural rules depositions may be conducted remotely and requests for remote depositions are complied with as far as conditions allow. Further, according to Act no.13/1984 requests for witnesses or experts to be heard by telephone or by videoconference shall be complied with as far as possible. However, depositions by telephone should only be allowed if the witness or expert agrees. |
| 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? | Icelandic legislation does not have any blocking statutes preventing foreign states from obtaining certain types of evidence through methods described in Icelandic legislation and statutes to which Iceland is a party. However, the Icelandic civil and criminal procedure codes contain general provisions prohibiting witness statements concerning security, rights or prosperity of the state, or which are of great significance for the nation’s trade or financial standing. Further, Iceland has implemented the EU General Data Protection Regulation 2016/679, preventing certain evidence from being taken for use in foreign proceedings other than under applicable evidence conventions, with Article 48 of the regulation stating that “[a]ny judgment of a court or tribunal and any decision of an administrative authority of a third country requiring a controller or processor to transfer or disclose personal data may only be recognized or enforceable in any manner if based on an international agreement, such as a mutual legal assistance treaty, in force between the requesting third country and the Union or a Member State [...].” |
| 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? | Yes, there is nothing that prevents citizens residing in Iceland from voluntarily giving evidence in a foreign proceeding, as far as the provided evidence is not under any “blocking statute”. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | There is no case law in Iceland indicating whether the Hague Evidence Convention or other statutes Iceland is a party to would be applied in case of arbitral proceedings. However, the Hague Evidence Conventions or other statutes concerning the gathering of evidence in civil or commercial proceedings should be available for use in arbitration proceedings, provided that the laws of the requesting state provide for judicial assistance in obtaining evidence for arbitration and the request for the taking of evidence under the convention is presented by the relevant judicial authority of the state where the arbitration proceedings take place and received by the relevant authority in Iceland. The need for involvement of judicial authorities could thus be a limiting factor in obtaining evidence in aid of arbitral proceedings. According to the relevant judicial authority in Iceland, this would need to be evaluated in each case. |
Gathering Evidence in Aid of Foreign Litigation Guide
Yes, Iceland permits the gathering of evidence in aid of foreign litigation.
Iceland has been a party to the Hague Evidence Convention since January 9, 2009. Further, Iceland has been a party to the Nordic Convention on Mutual Assistance in Judicial Matters between the governments of Iceland, Denmark, Finland, Norway and Sweden since July 22, 1975 (the “Nordic Convention”) and is a party to the European Convention on Mutual Assistance in Criminal Matters (the “European Convention”), which was originally implemented into Icelandic legislation with Act no. 13/1984 on the Extradition of Criminals and Other Assistance in Criminal Proceedings. Iceland is also a party to other conventions concerning mutual assistance in judicial matters.
Yes, the request for gathering evidence in civil proceedings is handled by the District Commissioner of Sudurnes.
Requests for gathering evidence in criminal proceedings shall be sent to the State Prosecutor. However, if there is no agreement in force with the state requesting assistance, the request shall be sent to the Ministry of Justice.
The letter of request shall indicate the evidence to be obtained, according to the Hague Evidence Convention. Icelandic law is applied as to the methods and procedures to be followed in executing the letter of request, unless the requesting state has requested that a special procedure will be followed, that is not incompatible with Icelandic law. Information that can be sought can include documents, written questions and depositions.
If a request for assistance is made on the basis of the European Convention, the request shall follow the procedure indicated by the requesting state, provided that it is not contrary to Icelandic legislation. According to Icelandic legislation, this could include requests for documents, written questions and depositions.
A witness is entitled to claim privilege from giving any evidence that he or she could not be compelled to give under Icelandic law or under the law of the requesting state. Icelandic legislation does not contain specific rules on who bears the burden of showing whether any privileges apply, as the rules concerning the grounds to claim privilege are in principle objective and therefore neither party should need to demonstrate specifically whether privileges apply.
No, although such a request should be in accordance with the law of the requesting state. However the request needs to be in accordance with Icelandic procedure and, according to Act no.13/1984, a request may not be granted if the act which it concerns, or a comparable act, is not punishable under Icelandic law.
Yes, according to Icelandic procedural rules depositions may be conducted remotely and requests for remote depositions are complied with as far as conditions allow.
Further, according to Act no.13/1984 requests for witnesses or experts to be heard by telephone or by videoconference shall be complied with as far as possible. However, depositions by telephone should only be allowed if the witness or expert agrees.
Icelandic legislation does not have any blocking statutes preventing foreign states from obtaining certain types of evidence through methods described in Icelandic legislation and statutes to which Iceland is a party. However, the Icelandic civil and criminal procedure codes contain general provisions prohibiting witness statements concerning security, rights or prosperity of the state, or which are of great significance for the nation’s trade or financial standing.
Further, Iceland has implemented the EU General Data Protection Regulation 2016/679, preventing certain evidence from being taken for use in foreign proceedings other than under applicable evidence conventions, with Article 48 of the regulation stating that “[a]ny judgment of a court or tribunal and any decision of an administrative authority of a third country requiring a controller or processor to transfer or disclose personal data may only be recognized or enforceable in any manner if based on an international agreement, such as a mutual legal assistance treaty, in force between the requesting third country and the Union or a Member State [...].”
Yes, there is nothing that prevents citizens residing in Iceland from voluntarily giving evidence in a foreign proceeding, as far as the provided evidence is not under any “blocking statute”.
There is no case law in Iceland indicating whether the Hague Evidence Convention or other statutes Iceland is a party to would be applied in case of arbitral proceedings. However, the Hague Evidence Conventions or other statutes concerning the gathering of evidence in civil or commercial proceedings should be available for use in arbitration proceedings, provided that the laws of the requesting state provide for judicial assistance in obtaining evidence for arbitration and the request for the taking of evidence under the convention is presented by the relevant judicial authority of the state where the arbitration proceedings take place and received by the relevant authority in Iceland. The need for involvement of judicial authorities could thus be a limiting factor in obtaining evidence in aid of arbitral proceedings. According to the relevant judicial authority in Iceland, this would need to be evaluated in each case.