A world complicated by IT

Information technology or IT as we commonly know it has grown at such rapid pace that few have been able to keep pace with its progress.
Our future seems to be increasingly under the sway of information and communication technologies, the breadth of which appears not to respect any boundaries or limitations.
Right now, a great deal of deliberation is being done in the western hemisphere on precisely this kind of influence that IT has on. Human affairs
How does one regulate the role of IT in everyday life? Should it be regulated at all? Where does the legislator draw the line? How often should laws be amended?
The IT Law Conference organized by the IT Committee of the Bar Association of Sri Lanka (BASL) assumes importance given the nature and depth of some of the matters discussed here. Indeed. What is mentioned is no more than a superficial look at a few aspects of an exciting jurisprudence that can tickle the jurist with each passing day.
This conference will be held on September 8 and 9, at Hotel Trans Asia. Presentations on a variety of interesting topics will be made by specialists, followed by panel discussions.
Some of the issues raised here are a few of the questions that policy-makers in more developed countries have grappled with for some time. Though less vigorously, and with much uncertainty, the developing world is now taking a peek at these issues.
Sri Lanka has started this process, and slowly but surely the legal framework to address the numerous IT-allied issues appears to be trudging in. The passing of recent legislation is confirmation of the seriousness with which some of the IT-related matters are viewed by our legislators.
Yet, there remains much to be done. The sooner that draft laws are finalised, the better it might augur for Sri Lanka.
What does one do when a thief has accessed your credit card? Should you brar the debit? How safe is it to pay your bills through the Internet?
Many of us may have harboured such thoughts.
Indeed. What is the Internet? Why bring the law and those “blackcoats” to the realm of the Internet – that marvelous American creation. After all, it’s almost free for the taking and makes life that much easier.
The internet has been throwing up constant challenges to policy- makers and legislators from the time it became available to the world at large.
Internet banking is actively promoted by many banks. It has its advantages. Both to the bank and to its customer. But, what legal implications follow?
Few banks clearly set out there policy with reference to the use of services through the Internet. Foreign banks appear at least state their. The banks customers are by and large ignorant of the legal implications of their electronic transactions.
Electronic commerce faces similar challenges. There appear to be more unanswered questions than answers concerning the legal viability of transactions done through the Internet. The taxation of electronic commerce will inevitably present its own difficulties.
That brings us to a subject that received much publicity after a decision of the Supreme Court, much to the pleasure of zealous customs officers, overturned a decision of the Court of Appeal and approved the imposition of customs duty on customized software.
Can software goods be imported? Can there be customs duty when software is downloaded from a website? The decision of the court added to the confusion.
Business process outsourcing (BPO) has fast become a rage. The use of information technology and the outsourcing of information technology have raised their share of questions. Can Sri Lanka’s legal framework deal with these issues?
Telecommunications and IT are inextricably linked. Every little while there seems to be that wee new gadgetry that turns an adult into a child. IT has stretched the boundaries of telecommunication technology. It hasn’t failed though to tease and distress the policy - maker.
Intellectual property by itself is a formidable branch of law. It is an area of the law, similar to the fast - developing body of the law on IT, that has grown in numerous exciting fronts. Principles of intellectual property law are fascinatingly intertwined with IT law and raise issues that are sometimes difficult even for policymakers to comprehend.
The use of pirated software is a sensitive issue. It is no secret that major software producers are taking up the infringement of their copyright even in developing countries. Sri Lanka is no exception. Certainly, in Sri Lanka, the indications are that action against copyright infringement will not be confined to foreign software developers alone.
Participants at this conference will be able to send their questions either in advance or during the proceedings.


Notarial malpractices

By Dharmapala Senaratne
It was only the other day that the newspapers carried a report to say that an Attorney-at-Law cum Notary Public was sentenced to heavy imprisonment by court on account of misconduct relating to his notarial work.
Similar reports have become a common feature, indicating a rise in the incidence of professional malpractices by Notaries Public. Yet, one finds the offices of notaries scattered at every nook and corner in the country.
This undoubtedly is suggestive that their services are much in demand. Indeed, almost everyone would need notarial services at some stage in life – like for instance, the services of a Registrar of Marriages.
This state-of-affairs calls for the providing of streamlined and honest notarial services which should be well supervised and overseen.
Equally important is that the members of the public possess an awareness of functions, duties and obligations of notaries.
The primary law in this regard is the Notaries Ordinance No 1 of 1907.
Notaries are appointed by the minister in charge of the subject by warrant granted by him specifying the area and the language or languages in which the notary is authorized to practise.
The minister is empowered by law to revoke the warrant granted by him in specified circumstances.
A Notary may or may not be an Attorney at Law.
The law has provided for non-lawyers, too, to qualify as notaries. In the case of a non-lawyer, he should be of good character and repute, be over 20 years of age and have passed the requisite examination.
Generally speaking, one is well advised to prefer the services of a lawyer because of his better legal competence.
Sadly, non-compliance with the legal requirements by notaries is today quite prevalent.
Take this example. The transfer of an immovable property is required in law to be effected by a notarially executed deed or instrument which should be executed in triplicate. The second copy must be properly stamped and dispatched to the relevant Land Registry before the 15th day of the following month, though many laymen may be unaware of this requirement.
Instances of failure to comply with this requirement is common and numerous. Both notaries and their clients must address their minds to this prerequisite. For, failure to do so can result in drastic consequences for either party or both.
Overlooking Section 31 (3) is also quite common. Here, the notary is precluded from obtaining the signature of his client ‘until the whole of such deed or instrument shall have been written or engrossed thereon’. It has been provided that it is ‘the duty of every notary strictly to observe and act in conformity’ with these rules. Thus, obtaining a signature on a blank sheet is never permissible.
The same may be said of Section 31 (12), which provides that a signature should be placed ‘in his presence and in the presence of one another and the executant and of the attesting witnesses’.
Let it be noted that those who seek the services of a notary have the right to insist that the notary comply with these rules.
Then again, Section 31 (13) has specifically prohibited the authentication or attestation of any deed or instrument where the notary is a party himself.
The execution of a deed is indeed a serious matter. It may involve the purchase of a property out of money earned over a lifetime or the reputation of an individual or a matter of importance of like nature. Both Notary and client alike must act with responsibility.
The writer is an Attorney-at-Law


Arbitration in the Maldives

By Sarath Malalasekera and Ayseha Wijeratne
Sri Lanka Legal Aid Commission Chairman S. S. Wijeratne and President’s Counsel, Dr. Harsha Cabraal recently conducted a workshop on arbitration law in the Maldives.
Here are excerpts from presentations made by Wijeratne and Cabraal.
“An explosion of international business opportunities has resulted in the emergence of dispute resolution as an important dimension of the emerging global economy. The business world of today demands speedier and cost-effective solutions to disputes. Dispute-resolution options available today can be easily categorised into litigation, arbitration and other methods of alternate dispute resolution (ADR). The commercial world in the past resorted to litigation to solve its disputes. The commercial community, however, has now realised that arbitration and other methods of ADR are much easier to solve commercial disputes.
Arbitration can be either institutional or ‘ad hoc’. Parties choosing institutional arbitration will find it easy as the institute will provide the infrastructure for the arbitration Eg. Institute for the Development of Commercial Law and Practice (ICLP) in Sri Lanka. On the other hand, parties choosing ‘ad hoc’ arbitration will need to think about how to manage the case from a procedural point of view. The United Nations Commission on International Trade Law (UNCITRAL), Arbitration Rules, first published in 1976 provide an acceptable framework for administering arbitration, permitting adequate flexibility.
In some cases, parties choose to establish their own rules and at times this can create additional problems. Institutions, on the other hand, have their own model clauses, which can be used as they are or adopted according to the requirements of the parties.
The New York Convention on the Recognition and Enforcement of International Arbitration Awards of 1958 is one of the most successful commercial treaties in international trade and it provides a theoretically simple system for the nearly universal recognition of arbitration awards. All the major trading nations are parties to this Convention.
The term ‘Arbitration Agreement’ has to be defined by law. It must require the arbitration agreement to be in writing whether as a clause in a contract or in the form of a separate agreement. Any dispute which is not contrary to public policy and capable of determination by arbitration can be referred to Arbitration by the parties. If the validity of an arbitration agreement which is part of another agreement is in dispute, the former should be deemed to constitute a separate agreement as provided for in the law.
Where parties have failed to agree on the number of arbitrators and the manner of appointing them, there shall be three arbitrators and where an even number of arbitrators are appointed by each party, the arbitrators so appointed should jointly appoint the chairman under the law. The court may in the circumstances provided by law be asked to appoint or remove arbitrators. The law must require the arbitrators to be independent of the parties and allow a party to challenge an arbitrator who does not measure up to the required standard of impartiality.
The law may provide the Award to be in writing and signed by the majority of the members of the Tribunal and the reasons for the failure or refusal of any arbitrator to sign the award to be given. It may also require the reasons upon which the award is based to be stated unless the parties have agreed to dispense with such requirement and the date and place of arbitration to be indicated. When the Award is for payment of money, an order on interest has to be made as agreed upon by the parties and in the absence of such from the date of the commencement of the Arbitration. The law should provide a time limit - such as a period within 14 days of receipt of award – for a party to request the Arbitrating Tribunal to correct, modify or make an additional award.
The law should provide that every application to court should be by way of petition and affidavit and all parties other than the Petitioner should be made Respondents. Upon making an application the Respondent is given an opportunity to state his objections, supported by affidavit.
A superior court must be vested with power under the law to make rules regarding any application or appeal, the costs of such and payment of moneys into and out of court in satisfaction of a claim to which the Arbitration agreement applies. The period of arbitration proceedings should be excluded from the calculation of the period of prescription in any action, which has previously been submitted to arbitration according to the provisions of the law.
Except in circumstances where the right of action is extinguished by the death of a person, the arbitration agreement is enforceable by or against the legal representatives of the estate of the deceased unless the contrary intention appears in the agreement.


Fraud and Money Laundering

A seminar titled, “Fraud and Money Laundering - planning for Sri Lanka’s future” organized by the CIMA Sri Lanka Division will be held on August 30,2006 at the CIMA Auditorium, 356 Elvitigala Mawatha, Colombo 5.
The speakers at this one day seminar will be David Cafferty, Training Director, Association of Certified Fraud Examiners, UK Chapter and Member of the CIMA Technical Advisory Group and Naomal Goonewardena, Partner, Nithya Partners
The course outline will include auditing for internal fraud, construction industry fraud, financial statement fraud, internet fraud, money laundering - background and history, prevention of money laundering Act 2006, customer due diligence and identifying suspicious transactions.