Click first, sue later

Rethinking commercial law in Sri Lanka's digital economy

- By Zara Mandviwalla Akbarally

COMMERCIAL law has never stood still. It has always evolved with trade, technology, and trust. Yet the pace of change today is different. Capital moves faster than statutes. Data moves faster than courts. Payments move faster than compliance mechanisms, dispute resolution, and remedies.

Consumers interact with one transaction, not a technical ecosystem. Commercial law must ensure that responsibility is already allocated internally between platforms, software providers, banks, and data processors, rather than being exported outward to the weakest party when loss occurs.

That moment of failure is where commercial law is truly tested.

The challenge intensifies in cross-border digital commerce. Orders placed on global platforms may involve offshore sellers, foreign payment systems, and overseas servers. Traditional jurisdictional anchors, where the defendant resides or where the cause of action arose strain under algorithmic marketplaces.

Consumer protection law exists, but much of its machinery presumes identifiable traders and territorial enforcement. Litigation remains slow and remedies lag behind loss. There is the mismatch between laws built for physical or human marketplaces and commerce now governed by code and algorithms.

Sri Lanka does not need to import foreign frameworks wholesale. Sri Lanka is well placed to build a hybrid approach, one that preserves statutory certainty while empowering courts to align responsibility with economic reality.

The UK Supreme Court decision in Uber BV v Aslam crystallised this approach. The Court ignored contractual labels and asked a commercially grounded question: who controls the economic reality of the transaction? The Court concluded that Drivers were in a position of subordination and dependency, regardless of how the contracts were drafted.