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
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
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
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
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
Participants at this conference will be able to send their questions
either in advance or during the proceedings.
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
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
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
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
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
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
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
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
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