‘Law and Practice of Commercial Arbitration in Sri Lanka’ by Dr. Harsha Cabral, President’s Counsel

I am indeed happy to do a review of this book for three main reasons. Firstly, the book relates to a very important aspect of Commercial Law and Practice in this country. Secondly, this is a definitive book on the subject which anyone interested in arbitration should be conversant with and thirdly, the author of the book is by far the most competent lawyer well experienced in the subject to write this book.

A cursory glance of the 785 pages of the text will enlighten the reader on the increased significance and the need for commercial arbitration. At present compared to other dispute resolution mechanisms in Sri Lanka such as mediation and conciliation, it is arbitration that is gaining ground and is the most popular as opposed to litigation. As the author Dr. Cabral points out the business community is more comfortable with arbitration wherever possible in avoiding litigation. 

In commercial disputes while the growing demand for arbitration exists, there is however a considerable lacuna in literature on the actual operation of the provisions contained in our Arbitration Act, No. 11 of 1995. It is in this light that Dr. Cabral has penned his thoughts on the same in what I would term as a classic ‘cradle to the grave’ text starting from the creation of an arbitral tribunal, through the several steps in the proceedings, to the setting aside or enforcement of an arbitral award.

This is the first edition of Dr. Cabral’s book and it can be seen as a ‘one-stop-shop’ or an easy referral and guidance for arbitrators, arbitration practitioners, judges, lawyers, consultants, researchers, business professionals, bureaucrats, industrialists, entrepreneurs and students and all those whose lives and careers touch arbitration. 

For convenience, the chapters of the book are divided into two parts. The first part comprises of an extensive commentary on the 50 sections of the Sri Lankan Arbitration law, namely Act No. 11 of 1995. The second part primarily explores the advantages, disadvantages and deficiencies of commercial arbitration in Sri Lanka. In doing so, the author has drawn parallels from the practices followed in prominent international arbitration centres such as Singapore International Arbitration Centre (SIAC) and International Chamber of Commerce (ICC), to name a few. On the other hand, interestingly, Dr. Cabral has dedicated an entire separate chapter to address ‘The Future of Commercial Arbitration in Sri Lanka’. This is the final chapter of the text. 

Practitioners in commercial arbitration will find this book extremely useful because of the great ease of locating various international arbitration institutes around the world located in countries such as Singapore, France, India, Hong Kong, China, Japan, Korea, New Zealand, Dubai, Australia, Switzerland, London and America. Basically, there are about 33 centres which the author has named. Supplemented to this valuable information are the model arbitration clauses of such centres included at the practitioner’s disposal. As I said earlier, practitioners will find this information of immense value.

To proceed further with this review, starting with an introductory chapter, Dr. Cabral has successfully brought forth the background to the current law on arbitration in Sri Lanka. He has done so by outlining the history of the enactment of the current Act No. 11 of 1995 and the later developments. In the first 10 chapters of this 21 chapter book, there is an in-depth analysis of the separate provisions of the Act. The 10 chapters respectively examine the following aspects:

the pre-requisites for the commencement of an arbitration, 

an establishment of the arbitral tribunal including its jurisdiction, 

the seat of the arbitration and substantive law governing the arbitration, 

the arbitral award; and

enforcement and setting aside of an arbitral award as well as the proceedings before the Court in an arbitration. 

While commenting on each provision of the law, Dr. Cabral has incorporated the relevant case law in order to give an elaborative account of the scope and ambit of the operation of such provisions. As I will point out later, Dr. Cabral should be specially congratulated for the collection of case law on arbitration in Sri Lanka because this has not been properly or successfully done before. Any legal practitioner will agree that case law is the anvil on which the law is moulded and developed. Without judicial decisions the law will be stagnant. Therefore, inclusion of all relevant case law on arbitration is one of the most valuable highlights of this text.

Augmented to ‘case law’ of about 100 cases, are journal articles and other scholarly material included in relevant footnotes for further understanding. Throughout the commentary the author’s systematic approach of analysing the provisions of the law – quoting the several provisions and producing its analysis simultaneously enables the reader of this book to understand the complex and often misconceived provisions of our Arbitration Act in an easily digestible manner. 

I referred earlier to the inclusion of ‘case law’ in this text. Reported and unreported Sri Lankan and foreign landmark judgments are given in a chronological order. This compilation is followed by a commercial arbitration of appellate and original courts followed by a list of 18 appendices comprising of international commercial arbitration rules of several prominent international arbitral institutes. Among them are the UNCITRAL Arbitration rules, ICC rules, SIAC rules, Hong-Kong International Arbitration rules, London Court of International Arbitration rules, Dubai International Arbitration rules, Swiss Rules of International arbitration, Australian Centre for Commercial Arbitration rules and Sri Lanka’s Institute for the Development of Commercial Law and Practice Arbitration rules and its Expedited rules. Such a list is not found in any other Sri Lankan text. In addition to these rules, the author has also incorporated the arbitration rules of the International Bar Association (IBA) and the International Centre for the Settlement of Investment Disputes (ICSID). This material increases the value of this book, and its utility for the practitioner of having such rules together with a series of judicial interpretation in a single source.

So much for a brief review of this book. Now I turn to speak a few words about its author.

Dr. Cabral is a senior President’s Counsel, specialising in the field of Company Law, Intellectual Property Law, Commercial Law, International Trade Law and Commercial Arbitration, with an extensive practice in the Commercial High Courts and the Supreme Courts of Sri Lanka. He is also a sitting member of the International Chamber of Commerce (ICC) International Court of Arbitration in Paris. A senior practitioner in arbitration, and a senior arbitrator (having served as sole-arbitrator, co-arbitrator and Chairman in a large number of arbitrations, domestic and international), and a senior lecturer and a renowned academic. With those qualifications let me say that Dr. Cabral is the most qualified and experienced in Sri Lanka to write this book.

Overall, considering the commendable style of explanation observed throughout the book and the quantum of information contained therein, it is safe to conclude that this text is a worthwhile acquisition and a valuable tool for all who are interested in commercial arbitration – especially those who are actively involved in the practice of commercial arbitration, both locally and abroad. I wish the book and its author all success.