LEGAL AID COMMISSION

Arbitration, integral part of Lex Mercatoria

Pavithra Ganesaratnam- Geneva LLM

Lex Mercatoria or ‘law of merchants’ is a collection of trading principle used by merchants while trading throughout Europe in the medieval times. “The Little Red Book of Bristol (ca. 1280)” is the first known source to describe lex mercatoria. It states that mercantile law is thought to have originated in the markets, but conflictingly later points out that “the common law... is the mother of mercantile law”1.

As for how lex mercatoria evolved into becoming substantive law, it is alleged that it preliminarily developed from general principles into customs and best practices.

As time passed, these customs were developed into enforceable agreements which over time evolved into law that the merchants themselves created with minimal intervention of the states. The present day commercial law finds most of its basic principles in lex mercatoria.

Dispute under lex mercatoria required fast paced dispute resolution as the commercial nature of the dispute warranted this.

As the civil law of that era was unsuited to deal with complexities of commercial trade, the merchants themselves were left with the task of resolving their disputes. Eventually courts/tribunals were created by the traders in the main trading routes for dispute resolution and enforcement.

Arbitration soon became the choicest method of dispute resolution under lex mercatoria. This was because arbitration was an amicable, fast, and a confidential way of resolving disputes.

Arbitration further kept business relationships between the parties intact which mean there was no bad blood between the parties and they could continue trading.

Mercantile disputes in this era were decided based on equity and consciousness (ex aequo et bono2) and emphasis was made towards contractual freedom and alienability of property.

But the lex mercatoria had its own problems. The customary and regional nature in the law resulted in it having a regional characteristic.

This for example caused the lex mercatoria laws in Italy to be different from those created in the United Kingdom.

This non uniformality also brought with it governance problems. How does one seek uniformality under rules which were different from each other in different jurisdictions? How do sovereigns control their nationals trading interests? What happens when spillage of law occurs - for example if there are two jurisdictions which are close to each other but one jurisdiction lex mercatoria is found in the other jurisdiction too? What if a sovereign controls an area which has more than one lex mercatoria?.

Symposium on new Title Registration Act

Swasthika ARULINGAM

Do you know that, transfers of title is achieved by State action, that instruments of title are executed only on Registered Plans certified by the Surveyor General and approved by the Commissioner General of Title, that there will be Transact Forms after the ROT Act is implemented, that the Prescription Ordinance will not apply for land transactions and that the boundaries of lands will be digital and Plans henceforth will have permanent digital boundaries?

An attempt was made to answer these questions in a seminar on Title Registration (with special reference being made to The New Property Laws Act, 21 of 1998 and Electronic Transaction Act, No 19 of 2006) organized by the LAC at the Sri Lanka Foundation Institute on the 5th of November, 2011.

The new law pertaining to Title Registration had created many uncertainties and has raised many issues amongst the legal fraternity. This discussion was mainly organized to benefit lawyers and to create a forum to discuss issues and problems with regard to the new system.

Justice Shirani Tilakawardene, Judge of the Supreme Court and Shibly Azeez, President of the Bar Association, S. S. Wijeratna, Chairman, LAC and Justice Nissanka Udalagama, Senior Consultant LAC graced this occasion and participated in the discussion.

A panel of experts on the new Title Registration Laws which included Ms. Keerthimala Gunasekara, Attorney-at-Law (Conveyor), L.K. Premarathne, Commissioner General of Title Settlement and Dr. Jayantha Fernando, Director/Legal Advisor, ICTA Agency of Sri Lanka contributed to the discussion.

The presentation was followed by a lively discussion by the participating legal fraternity.

Law week 2011 - opportunity to obtain free legal advice

Law Week is a prestigious event in the activity calendar of the Bar Association of Sri Lanka (BASL), confirmed by the commitment of the legal practitioners to provide increased access to justice to the general public. The main objective of Law Week, being held for the fourth time, is to raise awareness amongst the citizens of their rights, duties, privileges and remedies and create a law abiding society for sustainable development.

U R de Silva, the Chairman of Law Week 2011 Committee and Ms. Charmaine Madurasinghe, its Convenor have taken the initiative this year to hold Law Week 2011 under the theme, “THE ROLE OF THE LAWYER TOWARDS NATIONAL PEACE AND HARMONY”, in three phases.

During the first phase, ( Eastern Province) , the BASL in collaboration with the United Nations Development Project (UNDP) held a seminar for lawyers on November 4 2011, and two legal aid clinics offering free legal advice to the public on November 5 at the Divisional Secretariat Office in Kiran, Batticaloa North (covering Valaichchenai) with special emphasis on orphans, child abuse and land matters and on November 6, at the Divisional Secretariat Office in Vellavely, covering South and West Batticaloa.

During the second phase, (Northern Province), the BASL with UNDP held three legal aid clinics offering free legal advice to the public at the Chetikulam Divisional Secretariat Office in Vavuniya on November 10, at the Tharanikulam Divisional Secretariat in Vavuniya on November 11, and at the Vavuniya North Divisional Secretariat on the November 12, and a seminar for lawyers at the Vavuniya Court Auditorium on November 13.

During the third phase from November 21 to 25, several Branch Associations of the BASL will hold legal awareness programmes in their respective areas culminating with the Law Week 2011 Exhibition to be held at the Court premises, Hulftsdorp Street, Colombo 12 on November 26, from 9 am to 5 pm offering free legal advice to the visitors by eminent members of the legal profession.

The BASL is also hopeful of having approximately 40 Government / Private Institutions which will operate stalls during the Exhibition and visitors will have access to them to obtain information and assistance with regard to their queries and problems.

This year, one of the key objectives of Law Week 2011, is to conduct a survey of remand prisoners languishing in prison for over a year sans an indictment and to provide such information to the Attorney General’s Department seeking their instructions and subsequently to keep their families informed of the status quo.

If you have any legal issues (not subject to litigation) you may call our Hotline 0727660660 and obtain a Reference Number.

Admission is free to all the above events.

Mahinda B. K. Lokuge,
Secretary,
Bar Association of Sri Lanka

Questions and answers

Fuel conversion

Question: I have a Petrol Vehicle. I want to do a fuel conversion of my vehicle. Please advice me how I can do it under the Motor Traffic Department?

Dahanigala,
Colombo

Answer: Fuel Conversion

Fuel conversion can be performed only after 3 years from the date of registration and before 25 years has been completed only.

Relevant documents

1. CMT 130 form
2. CMT 72 form
3. A photo copy of the revenue licence.
4. Letter from the Finance Company (only if applicable)
5. A photocopy of the bill of the engine.
6. A photocopy of the registration certificate.
7. A letter of request.

Procedure

1. The above-mentioned documents should be submitted to the Technical Branch and thereafter prior approval for the conversion should be obtained from the Commissioner General of Motor Traffic.

2. Producing the approval documents and the vehicle to the Werahera office and obtaining weight certificate and fuel conversion of vehicle can be performed after handing over the documents to the relevant branch.

Conversion of vehicle class

Question: Is it possible to do a conversion of the vehicle class under the Motor Traffic Department ?

Akuressa

Answer: Conversion of the vehicle class is possible only within a period of 25 years from the date of registration.

Relevant Documents

1. CMT 130 form
2. CMT 72 form
3. Photo copy of the revenue licence
4. Letter of the Finance Company (if relevant only)
5. Photocopy of the registration certificate
6. Letter of request

Procedure

1. The aforesaid documents should be submitted to the Technical Branch and prior approval should be obtained from the Commissioner General of Motor Traffic.

2. The approved documents and the vehicle should be produced to the Werahera office and performing the conversion of the vehicle class after handing over the documents to the relevant branch.

Registration of vehicle dealers

Question: Please let me know what kind of documents that are needed to register as a Vehicle Dealer under the Motor Traffic Department?

Samatha Kumara,
Kalutara

Answer: Approval of motor vehicle prototypes

*Prototype application
*Identity report obtained for the vehicle type submitted for prototype approval.
*Registration certificate, weight certificate and photocopies of MTA 2 application of each vehicle of that type. * Catalogue relevant to the vehicle type.
* Photocopy of the trade certificate obtained from the Department of Motor Traffic for the relevant year.

Registration of a Garage

*Application for the registration of a garage.
* MTA 23 form
*Application for the issue of a trade permit for the year ....
*VAT certificate.
*Title deed of the land where the garage is located.
*Trade permit Registration of a trading company/vehicle sale centre.
*Customs clearance certificates of 5 vehicles.
*Application for the registration of a trading company.
*MTA 23 form
*Application for the issue of a trade permit for the year ....
*VAT certificate
*Trade permit
*Land title deed Renewal of trading companies/garages.
*MTA 23 form
*Application for the issue of a trade permit for the year ......
*Trade certificate obtained from the Department of Motor Traffic in the previous year.

Motor Traffic Department

Question: Please let me know the contact details of the Motor Traffic Department and its Branches?

Arunoda,
Mahara

Answer:Address:

No. 341, Alvitigala Mawatha, Colombo 05, Narahenpita.

Phone: +94 11 2694331, 2694332, 2694333, 2694334, 2694335, 2694336

How do I register a brand logo?

Question: Please let me know how do I register a brand logo in Sri Lanka? Could you kindly explain the procedure in detail.

Malalasekara

(Sent by email)

Answer: According to the Sri Lankan Law -

A Trade Mark is a word, phrase, symbol or design, or combination thereof, which identifies and distinguishes the source of the goods or services of one party from those of others.

A Service Mark is closely related, to a Trade Mark and serves to identify and distinguish the sources of services rather than products. Certification Marks are used to certify that goods or services of others have certain characteristics.

Collective Marks are used to indicate membership in an organization or to indicate that goods or services are produced or authorized by an organization

Registration under the Sri Lankan Intellectual Property Act No. 36 of 2003 grants Statutory Protection to Trade and Service Marks

It must be emphasized that Prior User of the Mark in the Home Country or in Sri Lanka is not a pre-requisite for Registration

Intellectual Property Associates will assist you to secure Trade and Service Mark rights in Sri Lanka.

With regard to registration of a brand logo/trade mark, first of all, you have to visit the National Intellectual Property Office in Sri Lanka and obtain the Classification Copy.

This copy will contain all the classification (Class I & Class II).

After selecting the class of your trade mark, you have to go through the public search at the Intellectual Property Office. After finishing the public search, you can collect the application form. All information is given in that form. If it is a Company or Partnership trade mark you have to pay Rs.3,450/= as registration fee. If it is an individual trade mark you have to pay Rs.1,500/=. The Office is open from 9.00 a.m. to 3.00 p.m. Search fee per day is Rs.150/=.

An Application for registration of a Trade or Service Mark must be made to the Director-General of Intellectual Property in Colombo, in the Prescribed Form and must contain -

1. A request for the registration of the mark.
2. The name, address and description of the Applicant, and if he is resident outside Sri Lanka a postal address for service in Sri Lanka
3. Five copies of a representation of the mark
4. The goods or services for which registration is sought under the International Classification.
5. The Prescribed Application fee

6. Where the Application is filed by an Agent it should be accompanied by a Power of Attorney. This document need not be Notarialized or Legalized.

All Applications are searched and examined in the order of filing by the National Intellectual Property Office (NIPO) for registrability. If acceptable the Application is published in the Government Gazette and left open for a period of three months for public scrutiny and third party Opposition if any. If opposed a hearing will be held at NIPO after the filing of Written Submissions and any available evidence and the fate of the Application would be then determined. If there is no such Opposition filed NIPO will proceed to register the Mark absolutely or subject to any conditions as the Hearings Officer shall deem fit.

Contact Information:

National Intellectual Property Office of Sri Lanka
“Samagam Medura”, 3rd Floor,
400, D.R. Wijayewardene Mawatha,
Colombo 10.
Telephone: +94 11 2689368

Fax: +94 11 2689367
E-mail: [email protected]

Where to report in case of accident in workplace?

Question: Please let me know -

(a) if an accident occurs in a workplace; or
(b) if the environment in the workplace is not safe

Where should we report? Your kind reply would be greatly appreciated.

K. Samantha,
Nugegoda

Answer:All such accidents and dangerous occurrences in workplaces could be reported to the following address:- Commissioner of Labour (Industrial Safety) &

Chief Factory Inspecting Engineer,

Industrial Safety Division,

Department of Labour,

No.97, Jawatta Road,
Colombo 5.
Tel.: 011-2508783
Fax: 011-2508772
Email: [email protected]

The Industrial Safety Division of the Department of Labour renders the following services:-

*Investigate fatal and serious accidents at workplaces and prevent reoccurrences.
*Inspect workplaces on safety, health and welfare to ensure the compliance with the Factories Ordinance of Sri Lanka.
*Investigate the complaints by workers and trade unions.
*Inspection of high risk machinery at workplaces.
*Conduct safety awareness programmes to employers and employees.
*Execute legal action on the contraventions of Factories Ordinance.

Why you should get registered with the SLBFE?

Question: Is it necessary to register with the Sri Lanka Bureau of Foreign Employment (SLBFE) before you leave for foreign employment? If so, what is the advantage in doing so?

Answer: Yes. It is a legal requirement that all Sri Lankans who migrate for foreign employment should register with the Sri Lanka Bureau of Foreign Employment. In doing so, you will be entitled to the following benefits:-

*Job security.
*Free Insurance Coverage.
*Scholarships and free educational equipment for your children.
*Free medical facilities for family members.
*Low interest (5%) housing loans and self-employment loans.
*Intervene in your problems/difficulties at workplace.
*Providing legal assistance when required.
*Welfare services provided free of charge at “Sahana Piyasa” Welfare Centre.
*Social security services.
* Compensation and reimbursement of funeral expenses in the case of death of a migrant worker.