Issues of Jurisdiction, Choice of Law and Enforcement in International Commercial Arbitration: A Sri Lankan Perspective

Abstract

It is proposed to consider in this chapter in some detail, issues relating to jurisdiction, choice of law, and the enforcement in Sri Lanka of foreign arbitral awards. It is noteworthy that the Arbitration Act No. 11 of 1995, which is currently in force in Sri Lanka, applies uniformly to the conduct of purely domestic arbitration proceedings as well as to arbitration proceedings conducted in Sri Lanka involving one or more foreign parties and to the enforcement of foreign arbitral awards. Decisions of the courts in Sri Lanka have emphasized the consensual nature of arbitration and adopted a policy of minimum judicial intervention into arbitration proceedings. The courts also have been supportive of arbitration and endeavoured to assist and safeguard the arbitral process. The chapter will examine the provisions of the Arbitration Act that attempt to deal with certain issues involving conflicts of jurisdiction and the doctrine of Kompetenz-kompetez which seeks to empower the arbitral tribunal to rule on its own jurisdiction. In particular, an effort will be made to examine in some detail, questions involving jurisdiction that arise in the context of section 5 of the Arbitration Act, in comparison with the law and practice that exist in other South Asian jurisdictions. The choice of applicable law has always been a problem that has confounded arbitral tribunals when dealing with cases that have cross-border connections and connotations, and it is noteworthy that the Sri Lankan Arbitration Act recognizes the concept of party autonomy in regard to choice of law. An attempt will be made in the chapter to show how Sri Lankan arbitral tribunals and courts have dealt with issues arising from competing norms of national law as well as foreign law. Prior to the enactment of the Arbitration Act in 1995, there were many issues pertaining to the enforcement of foreign arbitral awards. While the Arbitration Act has resolved most procedural issues regarding enforcement of foreign awards, there remain many grey areas, particularly in regard to the concepts of arbitrability and public policy, and the interpretation of the enforcement provisions of the Sri Lankan Act, which seek to give effect to the international obligations that arise from Sri Lanka’s ratification of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards without any reservations. Recent decisions of the Supreme Court of Sri Lanka have dealt with some of these issues, which will be examined, in detail in this chapter. An attempt will be made in the chapter to explain how Sri Lankan arbitral tribunals and courts have dealt with issues arising from competing norms of national law as well as foreign law.