This thesis is a culmination of a research of a particular branch of Corporate Law, which
has grown in several major parts of civilized jurisdictions. The thrust of the study was to
evaluate the past, present and the future of a particular type of action known in Corporate
Law under the umbrella of shareholder remedies - the 'Derivative Action' with emphasis
to develop the law in one jurisdiction profiting from another. The research thus reveals
how, when and where the so called action originated, the initial effects these actions had on
the corporate world including shareholders, companies and related persons natural or
juristic. Though much has been written by way of books, treatises and articles and several
researches have dealt with the common topic shareholder remedies in its broad perspect,
there is no separate study carried out on this topic in its global context with a comparative
focus. This study has therefore given me the drive, initiative and courage to look at the
conceptual view or the macro view of the so called 'Derivative Action' with of course
special emphasis on the Australian and Sri Lankan jurisdictions in its micro aspects. This, I
believe is the first time anyone has undertaken such a task. The study thus travels through
distant roads of common law action to the statutory form of the action in the relevant
jurisdictions and finds it driving with much purpose in jurisdictions such as Australia and
Sri Lanka which are both in the transitional era from the common law action to the
statutory action.
The research is based on the collection of material namely, case law - Australian, Sri
Lankan and international on the matters in issue, Legal treatises on the subject matter local
and international, Law reform material - Australian, Sri Lankan and international on the
topic, Bills and Statutes available on the topic in Australia, Sri Lanka and other countries.
I have met resource personnel with regard to Law Reform in several jurisdictions on the
matters in issue and visited the Australian Stock Exchange and the Colombo Stock
Exchange.
The research findings depend mainly on the electronic data available in addition to
resources available at the University of Canberra, the Australian National University,
Colombo Law Library, The Colombo Law Society Library and the Sri Lanka Supreme
Court Judges' Chambers Library and the Sri Lanka Attorney General's Department
Library. Visits to the McGill University in Montreal, Canada and the corporate law sector
in New Zealand, including Universities and Law Offices in Christchurch and Auckland too
has helped me considerably in the process.
Review of the literature of the proposed statutory Derivative Action in Australia and the
proposed statutory Derivative Action in Sri Lanka, are based mainly on; Enforcement of
the duties of directors and officers of a company by means of a statutory derivative action
(Report No. 12) Companies and Securities Law Review Committee. (November 1990.),
Corporate Practices and the Rights of Shareholders (Report of the House of
Representatives Standing Committee on Legal and Constitutional Affairs) Parliament of
the Commonwealth of Australia. (November 1991.), Report on A Statutory Derivative
Action Companies and Securities Advisory Committee. (July 1993.), Corporate Law
Economic Reform Program (CLERP) Proposal Paper No 3 (1997), the CLERP draft
legislative provisions (1998), Australian case law on the application of the common law
Derivative Action, both in the High Court and in individual States and Australian articles
on Derivative Action as a common law remedy and on the introduction of the statutory
action. In the Sri Lankan context, the proposals in Sri Lanka for the statutory Derivative
Action and the case law in Sri Lanka on the application of the common law remedy has
been referred to. Other literature include, material available on the Canadian formula of
Derivative Action, including Statutes, Rules, case law, articles and other relevant data,
material available on the Derivative Actions in the United States, material available in New
Zealand on Derivative Actions, material available in England on Derivative Actions,
namely on the common law approach, case law, articles, Bills, Rules and other connected
material, Statutes on Derivative Actions in other jurisdictions at present and Hong Kong
proposals for a statutory Derivative Action, to name some.
The aforesaid material and the review of the same have assisted the study as follows:
-To place the past, present and the future of the common law Derivative Action.
-Examine the objectives of the Derivative Action.
-The operation of the common law aspects of the action.
-The benefits of the statutory form of the action.
-Experiences of other countries in the recent past on the subject.
-The Australian reform process presently underway.
-The best experiences in Australia with regard to case law.
-To evaluate whether the remedy should be limited to fraud on the minority or whether it
should be extended further even to negligence.
-How best Sri Lanka could benefit from the Australian formula of the statutory form of the
action.
-To evaluate whether the proposed model of the statutory action in Sri Lanka is adequate in
view of the Australian and other accepted formulae on the subject.
-Whether the common law action should be expressly abolished in Sri Lanka.
-Consider the possible introduction of the best methods to Sri Lanka.
Finally, the research speaks for itself the need for a statutory Derivative Action for Sri
Lanka in the future, to be an improvement on the Canadian, New Zealand and Australian
models. The research findings, especially in its conclusions and recommendation in
Chapter 8, will no doubt help to improve the proposed statutory Derivative Action in Sri
Lanka in a small way.
| Identifer | oai:union.ndltd.org:ADTP/218816 |
| Date | January 1999 |
| Creators | Cabral, Harsha, n/a |
| Publisher | University of Canberra. Law |
| Source Sets | Australiasian Digital Theses Program |
| Language | English |
| Detected Language | English |
| Rights | ), Copyright Harsha Cabral |
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