SRI LANKA Law and Practice Contributed by: Amrit Rajapakse, Law Chambers of Amrit Rajapakse
any other person. An arbitral tribunal is not bound to hold an oral hearing unless the parties have agreed to such a hearing taking place. 7.3 Powers and Duties of Arbitrators Section 17 of the Act provides that an arbitral tribunal shall have the power to determine the admissibility, relevance and weight of any evidence. Section 22 (2) provides further that an arbitral tribunal may adminis - ter an oath or affirmation to a witness unless the par - ties have agreed otherwise. Subject to any contrary agreement by the parties, an arbitral tribunal is not bound by the provisions of the Evidence Ordinance (Section 22 (3)). In the absence of a relevant designation by the par - ties, an arbitral tribunal has the power to determine the place of arbitration (Section 16 (1)), the venue for hear - ings and for consultations (Section 16 (2)) and the law applicable to the substance of the dispute (Section 24 (2)). Other powers include the power to rule on its own jurisdiction (see 5.1 Challenges to Jurisdiction ), to order interim relief (see 6.1 Types of Relief ), to order security for the arbitral tribunal’s fees and expenses (see 6.3 Security for Costs ) and to award interest (see 10.3 Recovering Interest and Legal Costs ). 7.4 Legal Representatives Section 23 of the Act provides that, unless the parties have agreed otherwise in writing, a party may appear before the arbitral tribunal personally or, where a party is a body of persons (whether corporate or unincorpo - rated), may be represented by an officer, employee or agent of that body, and may in addition be represent - ed by an attorney-at-law. The term “attorney-at-law” would be understood to mean an attorney-at-law of the Supreme Court of Sri Lanka. A foreign lawyer may appear as an agent of a party. 8. Evidence 8.1 Collection and Submission of Evidence Section 22 (1) of the Act provides that, unless the par - ties have agreed otherwise, evidence before the arbi - tral tribunal may be given orally, in writing or by affi - davit. Under Section 20 (2), a witness who has been issued with summons to give evidence or produce
a document in any arbitral proceedings shall not be compelled to answer any question or produce any document that they could not have been compelled to answer or produce in court. The general approach followed in arbitrations in Sri Lanka is to file witness statements in the form of affi - davits followed by oral cross-examination. Discovery and disclosure are rarely used in ad hoc arbitrations and in arbitrations under Sri Lankan institutional arbi - tration rules. Affidavits tendered as evidence should comply with the provisions of the Oaths and Affirma - tions Ordinance. 8.2 Rules of Evidence Section 17 of the Act provides that an arbitral tribunal shall have the power to determine the admissibility, relevance and weight of any evidence. Under Sec - tion 22 (3), subject to any contrary agreement by the parties, an arbitral tribunal seated in Sri Lanka is not bound by the provisions of the Evidence Ordinance. However, as mentioned in 8.1 Collection and Submis- sion of Evidence , rules of privilege applicable in court proceedings will also apply to arbitral proceedings. Although an arbitral tribunal thus has considerable freedom, it will have to follow certain basic norms of the law of evidence, such as those relating to the burden and standard of proof. For example, in Ata- pattu v Janashakthi General Insurance Co Ltd (2013), the Supreme Court reviewed the arbitral tribunal’s approach to the standard of proof in relation to an allegation of fraud. 8.3 Powers of Compulsion Sections 20 and 21 of the Act provide for court assis - tance in collecting evidence. Under Section 20 (1), a party may, with the prior written consent of the arbitral tribunal, apply to the high court for a summons requir - ing any person to attend before the arbitral tribunal and give evidence or produce any document or thing specified in such summons. Under Section 21 (1), if a third party to the arbitration agreement refuses or fails to appear before the arbitral tribunal or to answer any question or produce a document or do any other thing required by the arbitral tribunal, the high court may order such third party to appear before the court for examination or to answer such question or produce
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