Sri Lanka litigation guide
Chanaka De Silva
Nithya Partners
Tel: +94 11 4712625; Fax: +94 11 2695223; Website: www.nithyapartners.com
At the time of gaining its independence from colonial rule in 1948, Sri Lanka had inherited a peculiar mix of English law and Roman-Dutch law. Despite a number of attempts of law reform and the introduction of modern legislation in a number of areas, the Roman-Dutch law still remains the ‘common law’ of the country. The English law governs those laws in areas such as the sale of goods, banking, and administrative law.
Unlike in England, there is no division of the legal professions, with attorneys-at-law functioning as either instructing attorneys or counsel.
Procedure applicable to civil litigation is governed by the Civil Procedure Code No.02 of 1889, a piece of legislation from the colonial era that has been amended numerous times to keep abreast with modern needs. The main procedural legislation regarding criminal matters is the Criminal Procedure Code Act No. 15 of 1979.
District courts function as the primary civil courts and the magistrate’s courts are the primary criminal courts. The high courts function as the main criminal courts, to which cases are transferred after a non-summery inquiry at the magistrate’s courts. The Court of Appeal and the Supreme Court function as the appellate courts. In addition, the Court of Appeal exercises writ jurisdiction and reversionary jurisdiction. The Supreme Court exercises the ‘fundamental rights’ jurisdiction where breaches of fundamental rights by the Executive are adjudicated. ‘Fundamental rights’ law has become a popular avenue against Executive actions, which has also given rise to a fair number of public interest litigation.
The more recent additions to the courts system are the provincial high courts. Exercising civil jurisdiction (commercial high courts), theses have jurisdiction over matters that arise out of ‘commercial transactions’ in which the debt, damage or demand exceeds LKR3 million (US$26,000).
A Commercial High Court is established only in the Western Province of Sri Lanka, where the commercial capital Colombo is situated. In 2006, the provincial high courts (civil appellate courts) were vested with appellate and reversionary jurisdiction in respect of judgments, decrees and orders made by a district court. Civil appellate courts are functioning in each province, expediting the appeal process.
Sri Lanka enacted the Arbitration Act No.11 of 1995, fulfilling a long felt need governing arbitrations in Sri Lanka. The Act applies to all arbitration proceedings in Sri Lanka. A party to an arbitration agreement pursuant to which an arbitral award is made may apply to the High Court to enforce the award.
Apart from a few instances enumerated in the Arbitration Act the Court would issue judgment and decree enforcing the award. The few instances include: invalidity of arbitration agreement; improper notice given as to appointment of an arbitrator; the arbitral tribunal acting outside its jurisdiction; improper procedure followed by the arbitral tribunal; subject matter not being capable of being settled by arbitration; and, the award being contrary to public policy.
Foreign Arbitral awards are enforceable under the Act through the High Court but are subject to almost the same exceptions as set out above. This is irrespective of the country in which it was made. Thus, the Act gives effect to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958.
Another widely used ADR method in Sri Lanka is mediation. The Mediation Boards Act No.72 of 1988 established mediation boards, which institutionalised the mediation process and linked it with the judicial process. Under said Act, the referral of certain disputes enumerated in the Act to a mediation board established in the dispute area is mandatory. Financial disputes in which the value is less than LKR25,000 (US$220) must be referred to a mediation board. Only if the matter cannot be settled by mediation shall it be referred to the District Court. Mediation Boards have become a successful avenue in settling minor disputes.
Sri Lanka has not ratified or acceded to the Hague Convention of 1971 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial matters. Law relating to such enforcement is based on an old piece of legislation named The Reciprocal Enforcement of Foreign Judgments Ordinance No.41 of 1921. The Ordinance is applicable for judgments obtained in a superior court in the UK, and other parts of Her Majesty’s Realms and Territories outside the UK – as the minister may make order for the Ordinance to be applicable.
Given the significantly different political map of the world today, a safe conclusion is that judgments obtained in the High Court of England, Northern Ireland and the Court in Session in Scotland may be enforced in Sri Lanka.