SRI LANKA Law and Practice Contributed by: Amrit Rajapakse, Law Chambers of Amrit Rajapakse
15 of the Model Law. Thus, Section 10 (2) provides that an arbitrator may be challenged only if circum - stances exist that give rise to justifiable doubts as to their impartiality or independence. Unlike Article 12 (2) of the Model Law, however, the Act does not include the failure to possess any qualifications agreed to by the parties as a ground of challenge. Section 8 (1) provides that the mandate of an arbitra - tor terminates if such arbitrator becomes unable to perform the functions of that office or for any other reason fails to act without undue delay, dies, with - draws from office or the parties agree on the termi - nation. An application to remove an arbitrator on the ground of delay must be made to the high court under Section 8 (2). 4.5 Arbitrator Requirements Section 10 (1) of the Act stipulates an initial and ongo - ing duty to disclose any potential conflicts of interest, using nearly identical language to Article 12 (1) of the Model Law. The duty covers any circumstances likely to give rise to justifiable doubts as to the arbitrator’s impartiality or independence. Where the circumstanc - es arise subsequently, the disclosure should be made “without delay” to all the parties “and to the other arbitrators” (not required in the Model Law), unless they have already been informed. Section 15 (2) of the Act provides that an arbitral tribunal shall deal with any dispute submitted to it in an impartial, practical and expeditious manner. As noted in 3.2 Arbitrability , the Act does not specify any subject matters that may not be referred to arbi - tration. In common with other jurisdictions, it is likely that criminal matters, certain family law and employ - ment matters and certain statutory claims (for exam - ple, shareholder remedies and applications to wind up a company) would not be arbitrable. 5.2 Circumstances for Court Intervention A court can address issues of jurisdiction of an arbitral tribunal in one of three situations in Sri Lanka. Under Section 11 (1) of the Act, any party to the arbitral pro - 5. Jurisdiction 5.1 Challenges to Jurisdiction
ceedings may apply to the high court to determine a jurisdictional question instead of raising it before the arbitral tribunal. The court may also address issues of jurisdiction in proceedings to set aside an award under Section 32 or to refuse recognition or enforcement of a foreign arbitral award under Section 34, which correspond to Articles 34 and 36 of the Model Law. Under these provisions, an award may be set aside or refused recognition or enforcement upon proof that the arbitration agreement is not valid or that the award deals with a dispute outside the terms of the submis - sion to arbitration, which are jurisdictional matters. In Perera v China National Technical Imports & Export Corporation (2017), the High Court held that Section 11 (1) requires a choice to be made between raising a jurisdictional question before the arbitral tribunal or the high court. Once the parties have agreed to refer a jurisdictional question to the arbitral tribunal, a party cannot invoke the jurisdiction of the high court to decide that question. The court held further that the Act did not provide for an appeal to the court against a preliminary ruling on jurisdiction by the arbitral tri - bunal, as in Article 16 (3) of the Model Law. The only recourse available under the Act to a party who was dissatisfied with the arbitral tribunal’s ruling on juris - diction was an application to set aside the final award under Section 32. Sri Lankan courts have shown a general willingness to intervene in setting aside proceedings where it has been proved that the arbitral tribunal lacked juris - diction. In Hatton National Bank Ltd v Atapattu and another (2013) the Supreme Court set aside part of the arbitral award that dealt with a dispute that had not been included in the parties’ notice of arbitration and response or in their subsequent statements of claim and defence. In doing so, the court described it as “trite law” that an arbitral tribunal’s mandate to decide any dispute is confined to the limits of the power conferred to it by the parties in express terms or by necessary implication. In Perera v China National Technical Imports & Export Corporation (2017), the High Court held that negative rulings on jurisdiction by arbitral tribunals are not sub - ject to review under the Act. Based on its finding that the only recourse available to a party was an applica -
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