Top Lankan legal team attends conference in Korea

• Enforcing of contracts, protecting minority investors in Sri Lanka and Thailand

The fifth international conference on enforcing of contracts and protecting minority investors in Thailand and Sri Lanka was held between 6 to 8 May in Seoul, So  uth Korea, with the attendance of imminent personnel of the legal fraternity from Thailand, Sri Lanka, Korea, World Bank, UNCITRAL and observer countries such as Mexico and Singapore. 

On the invitation of the Government of South Korea, on behalf of Sri Lanka, several eminent Justices of the Supreme Court of Sri Lanka, which included Justice Buwenaka Aluwihare, Justice Priyantha Jayawardena and Justice Sunil Abeyratne, graced the Conference. In addition, President’s Counsel Dr. Harsha Cabral, Attorney-at-law Nishan Premathiratne, Additional Solicitor General Farzana Jameel, State Counsel Suren Gnanaraj, Deputy Legal Draftsman Vimaleswaran, Additional Legal draftsman Deepani Kumarajeewa, Director Statistics Department Central Bank Rohana Wijesekera and Deputy Director Statistics Department Central Bank Priyantha Jayasena were also part of the delegation who were invited by the Ministry of Justice of Korea to attend the conference.

The conference specifically dealt with delays in enforcement of contracts, especially in Sri Lanka and Thailand, and the roadblocks, which needed to be addressed and resolved in the respective jurisdictions. It was deliberated at the conference that the significant delays in an enforcement of a contract deters  Foreign Direct Investment, as enforcement is an essential factor which is primarily considered by prospective investors. Sri Lanka is quite disappointingly ranked at No. 165 from 183 countries in terms of the doing business index  of the World Bank in 2014  and takes  1,318 days to enforce a contract in terms of the said index. 

The welcome addresses to the conference were by the Minister of Justice, Korea, Justice Vichai Ariyanuntaka, Senior Judge, Thailand and Justice Buwaneka Aluwihare, Judge of the Supreme Court, Sri Lanka.

On behalf of Sri Lanka, a Sri Lankan lawyer’s perspective on the Sri Lankan Courts enforcement system was presented by Dr. Harsha Cabral, President’s Counsel with the assistance of Counsel Nishan Premathiratne through a presentation titled ‘Commercial Litigation in Sri Lanka’, where several propositions were suggested to address the delays in litigation and the issues associated with the legal system. As propositions, suggested inter-alia is necessary. 

Furthermore, Dr. Cabral emphasised that pleadings in Commercial Litigation should be also permitted to be made only in English unlike in the present where it is mandatory that the pleadings to court have to be Sinhala. Dr. Cabral submitted that electronic-filing of submissions should be promoted and documentation/case records/judgments should be made available online as most lawyers and judges at present in Sri Lanka are quite acquainted in IT.

Furthermore, it was proposed that encouraging an electronic system would permit the examination of witnesses to be also conducted via video conferencing moreover, that though the Commercial High Courts at present is properly equipped to cater to such it is unfortunately not being utilised. Dr. Cabral emphasised that significant delays are attached to the pre-trial stage which needs to be rectified. 

Moreover it was also emphasised that the judges who are transferred to the Commercial High Court should be given such time to understand and familiarise themselves with the procedures and practices of the Commercial High Court which can be provided by giving them the opportunity to sit with the incumbent Judge. It was also suggested that the judges of the Commercial Court should be given prior training before being appointed as a Judge of the Commercial Court. Dr. Cabral submitted that in order for the delays in Commercial Litigation and enforcement of contracts to be reduced the cooperation of both the bench and the Bar working unison is paramount.

 An international lawyer’s perspective of Sri Lanka’s Enforcing Contract System was given by Hyungkeun Lee, Partner Yulchon LLC, a leading Law firm in South Korea who highlighted that the problem in delay can be addressed by introducing measures to speed up trail procedures, by Introducing Mandatory Post Judgment Interest, Establishing More Commercial High Courts, by Publishing Judgments of Commercial High Courts and also emphasised on the setting up of the Electronic Court System.