LEGAL AID COMMISSION

Common sources of Lex Mercatoria

[Continued from last week]

The sources of Lex Mercatoria have been widely debated.

Lord Mustell who has widely written about Lex Mercatoria states there are six main principles from which Lex Mercatoria can be derives from. But Professor Burgers believes an open list on seventy eight principles of Lex Mercatoria is the best way to go.

These conflicts don’t help establish what Lex Mercatoria exactly is.

Having a common standard as to the recognised sources of the law would contribute towards making the system more uniform.

Codification of customary Mercantile laws

In the article “New Lex Mercatoria - Law Beyond the State,” Ralf Michaels encouraged the codification of soft laws and customs to establish a codified legal system of Lex Mercatoria. Codification makes the law certain and it is less likely to be misinterpreted. Also it ensures even application. By this method problem of uncertainty and overlap between jurisdictions could be addressed.

The UNIDROIT Principles of International and Commercial Law is a perfect example of one such codification.

Ensuring stare decisis in Lex Mercatoria disputes resolution

Mercantile disputes were resolved using arbitration because of its confidential and private nature. But the confidential nature of arbitration made stare decisis of decisions virtually impossible.

But recently national courts have been asked to intervene in these private arbitral disputes when interpretation and enforcement problems arise. This has made the system more clear as the courts are involved in Lex Mercatoria’s enforcement, resulting in national laws evolving to include Lex Mercatoria principles. This is a positive development as it ensures the even application of Lex Mercatoria to all similar disputes.

Give more teeth to enforcement of Lex Mercatoria decisions

Lex Mercatoria lacks enforcement powers as it’s a collection of customary norms which were created to operate on the goodwill of the parties. Unlike UNCITRAL or the International Commercial Court (ICC) it has no specific institution which would ensure its decisions are enforced. Thus to make people take it more seriously it should have enforcement powers by itself, rather than relying on other sources like national courts. This would make the system more uniform.

Regularising awards to create intelligible patterns

Arbitral awards are a source of Lex Mercatoria. But due to their confidential nature many of these awards are kept secret.

This cripples the ability for Lex Mercatoria to be regularised as no one exactly knows how the tribunal salved the disputes.

Thus there is no presidential force in decision and there is no publicly ascertainable general norm for those in the future to follow. Publishing the general principles or interpretations from the arbitral tribunals could play a role to help make this legal system uniform.

[QUESTIONS AND ANSWERS]

Functions of NCPA

Question: Please let me know the functions of the National Child Protection Authority in Sri Lanka?

Sadumini,
Mahara

Answer: The National Child Protection Authority Act No. 50 of 1998, provide for the establishment of the National Child Protection Authority for the purpose of formulating a national policy on the prevention of child abuse and the protection and treatment of children who are victims of such abuse. According to Sec.14 of the NCPA Act No. 50 of 1998, the following are the functions of the NCPA:

*Advising government on national policy and measures regarding prevention and treatment of child abuse as well as protection of children.
* Creating awareness of the rights of the child to be protected from abuse.
* Consulting and co-ordinating with the relevant ministries, local authorities, public and private sector.
* Organizing and recommending measures for the prevention of child abuse and protection of victims.
* Recommending legal, administrative and other reforms for the effective implementation of national policy.
* Monitoring the implementation of law, the progress of all investigations and criminal proceedings in cases of child abuse.
* Recommending measures in relation to protection, rehabilitation and reintegration into society of children affected by armed conflict.
* Taking appropriate steps for the safety and protection of children in conflict with the law.
* Receiving complaints from the public relating to child abuse and taking action on these.
* Advising and assisting local bodies and NGOs to co-ordinate campaigns against child abuse.
* Promoting, co-ordinating and helping conduct research on child abuse.
* Organizing and facilitating workshops, seminars, etc. to develop skills and knowledge.
* Co-ordinating with and assisting the tourist industry to prevent child abuse related to commercial sex networks.
* Co-ordinating, preparing and maintaining a national database on child abuse. This includes monitoring organizations which provide care for children.
* Serving as liaison for the exchange of information with foreign governments and international organizations. This includes donor and resource mobilization.

Child Protection Authority

Question: Please let me know the contact details of the National Child Protection Authority in Sri Lanka?

Saparamadu,
Kiribathgoda

Answer: National Child Protection Authority

NO 330,

Thalawathugoda Road,
Madiwela,

Sri Jayawardenapura,
Sri Lanka.

94-011-2778911, 94-011-2778912, and 94-011-2778913
94-011-2778915

Child adoption procedure in Sri Lanka

Question: Please let me know about the procedure that is applicable to a Foreigner who is willing to adopt a child from Sri Lanka?

P. Perera,
Maharagama

Answer: Any applicant who is not a citizen of Sri Lanka and not domiciled or resident in Sri Lanka is considered a foreign applicant. The foreign applicants who desire to adopt Sri Lankan children are required to forward their joint applications to the Commissioner of Probation and Child Care Services whose address is given below:

Commissioner, Department of Probation and Child Care Services

2nd Floor L.H.P. Building, No. 150 A, Nawala Road,

Nugegoda.
Sri Lanka.

Tel No : 0094 11 285 3549
Fax : 0094 11 285 2393
Email : [email protected]

Documents for adoption of a Sri Lankan Child must be accompanied by the following supporting reports.

(a) General information sheet of the applicants

(b) The documents should be accompanied by a “Home Study Report” (in duplicate) in respect of the applicants from an organization recognized by the country of the applicants and authenticated by the accredited representative for the Republic of Sri Lanka in that country.

Passport Size photographs of the applicants should be attached to both copies of the Home Study Report.

The applicants must attach to the Home Study Report a formal letter (in duplicate) requesting a child for adoption together with their preference if any.

NOTE :- As per Adoption Ordinance the “ A Home Study Report” means a report on the mental health of the applicants, their social, religious and financial background and their suitability to adopt a child. Overseas Social Welfare Agencies/Departments must include information on these specific aspects in the Home Study Report prepared in respect of proposed adoptive parents by the country of permanent residence of the applicants.

(c) Certified copies of the birth certificate of both prospective parents.
(d) Certified copies of the marriage certificate of both prospective parents.
(e) Certified copies of health certificates of both prospective parents.
(f) Certified copies of employment records of both prospective parents.
(g) Police reports on the conduct and activities of the applicants.
(h) Copies of the passport of the applicants must also be submitted.

NOTE :- All documents must be submitted (in duplicate) with certified English translations, when documents are in another language. Each and every Page of the documents should be authenticated by the Sri Lankan High Commission/Embassy in the country of the applicants. Applications not in conformity with these requirements will be rejected.

1. When you send the documents, you have to marked A to H in respective order. The original copy has to be prepared by annexing the English copy first, to be followed by the copy of the other language. In preparing the copy also the same order has to be followed. The original and the copy of the documents have to be prepared separately. The original copy will be submitted to the relevant District Court and the copy will be retained to the Department.

2. The applications together with the Home study Report (in duplicate) should be sent to the Sri Lanka overseas mission in the country of the applicants for authentication and transmission to the Department of Probation and Child Care Services in Sri Lanka.

3. The applicants should deal with the Department of Probation and Child Care Services through their respective Adoption Agencies.

4. When the Commissioner finds a suitable child after-assessment of the Home Study Report of the applicants, a letter will be issued intimating Commissioner’s decision to the adoption agency, which has forwarded the application. The Adoption Agency is expected to intimate the same to the applicants. The applicants will have to come to Sri Lanka only after receiving Commissioner’s letter of allocation. No foreign applicant can find children for adoption privately. Allocation of children can be made only from the State Receiving Homes and Voluntary Children’s Homes that are registered by the Department of Probation and Child Care Services for over five years and only by specific authorization of the Commissioner of Probation and Child Care Services.

4.1 Upon receipt of the Commissioner’s letter the applicants should make arrangements for their travel to Sri Lanka. The applicants will have to stay about 4 to 5 weeks in Sri Lanka, until all formalities connected with the adoption are completed.

4.2 After their arrival in Sri Lanka, applicants should present themselves for an interview at the under mentioned address. Applicants should produce at the interview their passports and the letter sent to them by the Commissioner.

Commissioner, Department of Probation and Child Care Services, 2nd Floor L.H.P. Building, No. 150 A, Nawala Road, Nugegoda, Sri Lanka.

Tel No : 0094 11 285 3549
Fax : 0094 11 285 2393
Email : [email protected]

5. After the interview of the applicants they will be issued with a letter by the Commissioner authorizing them to see the child at the particular Children’s Home. However, they should not take the child out of the custody of the person in-charge for any purpose without the prior approval of the Commissioner. Authority will be given to the applicants for the purpose of medical examination of the child, if such necessity does arise.

5.1 At the same time the applicants should arrange to institute court proceedings for which they should engage the services of an Attorney-at-Law.

6.After the adoption, copies of the adoption order should be obtained upon application to the court that made the order.

7.1 A copy of the certificate of Adoption should be obtained from the Registrar General, whose office is situated in Baththaramulla, Sri Lanka.

7.2 The adoptive parents should meet the Commissioner, with a copy of the certificate of adoption and request for a letter for the issuance of a passport. Thereafter the prospective adoptive parents have to apply for Sri Lanka passport for the adoptive child to the Department of Immigration and Emigration (Passport section), Ananda Rajakaruna Mawatha, Colombo -10, Sri Lanka, with the following documents.

1. Certificate of adoption (after registration)
2. The letter from the Commissioner
3. The original Birth certificate of the child. Applicants should consult their respective Diplomatic Missions regarding the issue of the Visa for the adopted child.

8. Where the adoption laws of the adoptive parent’s country of domicile do not provide for automatic recognition of adoptions authorized by a court of law outside their country, the adoptive parents should take steps early, to institute in legal proceedings in their country of domicile and a copy of the fresh Adoption Order should be sent to this Department.

9. Adoptive parents should furnish to Probation Department progress reports .Quarter yearly Progress Reports on the child prepared by a recognized Adoption Agency until the adoption is legally confirmed in their country of domicile.

(b) Half yearly in respect of such child along with the child’s photograph for a period of 3 years from the date on which the adoption is legally confirmed in the receiving country.

(c) Yearly, in respect of such child until he or she reaches the age of 10 years, Prepared by an institution recognized by the country of such adopter and authenticated by the accredited representative for the Republic of Sri Lanka in that country. Adoption of children (amendment) Act No 15 of 1992.