Browsing by Author "Wijerathna, Y."

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Duty towards environmental protection: Companies’ role under the Companies Act No 07 of 2007
(Research Centre for Social Sciences, Faculty of Social Sciences, University of Kelaniya, Sri Lanka, 2016) Wijerathna, Y.; Edirisinghe, A.
The Brundtland Commission's report defined sustainable development as “development which meets the needs of current generations without compromising the ability of future generations to meet their own needs”. In this context, it is problematic whether companies conduct their corporate activities in line with doctrine of sustainable development. The proposed study expects to find out whether the Companies Act No 07 of 2007 imposes any duty towards environmental protection on Sri Lankan Companies. The study will evaluate the scope and the extent of these duties (if there are any) and examine whether the statutory duties imposed are adequate to protect the environment. The overall approach to this study is a qualitative one. Further, relevant statutory provisions are analysed using the critical analysis method and the comparative analysis method. Critical analysis method was employed to analyze the relevant statutory provisions and the comparative analysis method is employed to examine similarities and differences between the Companies Acts of Sri Lanka and the United Kingdom. Qualitative data for the research was gathered through primary sources and secondary sources. Primary sources include the relevant statutes i.e. Companies Act No. 7 of 2007 of Sri Lanka and the Companies Act of 2006 of the United Kingdom and the case law. The secondary sources include books with critical analysis, journals, theses and electronic resources. The basic limitation of this method is that it does not satisfactorily focus on the actual implementation of the existing legal framework. It is submitted that Companies Act No 07 of 2007 does not expressly impose a duty on Sri Lankan companies towards environmental protection. Hence the existing statutory provisions are inadequate and the Companies Act should be amended to include express provisions to guarantee environmental protection.
Revisiting the Outdated Standard of Directors’ Duty of Care in Sri Lanka
(4th International Conference on Social Sciences 2018, Research Centre for Social Sciences, Faculty of Social Sciences, University of Kelaniya, Sri Lanka, 2018) Wijerathna, Y.; Dr. Kunhibava, S.; Dr. Balan, S.
Directors’ duties form an integral part of company law. For the first time in Sri Lanka, the Companies Act No 07 of 2007 (the Act), enacts directors’ duties in statutory form under sections 187 to 190 to make the law clear and well settled. The directors’ duty of care is set out under s. 189 of the Act. At common law, the director’s duty of care, skill and diligence was initially formulated in subjective terms. However, this duty was subject to drastic changes throughout the years. Acknowledging these changes, prominent jurisdictions laid down the standard of this duty to be more demanding. For instance, jurisdictions like New Zealand and Australia, Canada have adopted an objective standard whereas jurisdictions like the United Kingdom and Malaysia have adopted a dual approach by amalgamating both subjective and objective standards. However, a careful examination of s. 189 in the Act demonstrates that this section still embraces the initial common law approach. Moreover, s. 189 (a) refers to outdated standards of ‘gross negligence’ and ‘recklessness’ that reflect an extremely lower standard. In addition, it is noteworthy that the aspect of ‘diligence’, one of the components of the duty that is generally known as the ‘duty of care’, is not mentioned in s. 189 of the Act. As a developing nation, Sri Lanka strives to achieve economic development and such can be achieved, inter alia, with the successful contribution of the private sector. Hence, it is imperative that the law which regulates companies to be progressive and in tandem with modern trends. In this context, this research intends to carefully examine the statutory duty of care and skill in Sri Lanka to evaluate whether the existing law is adequate. This is a doctrinal research and through a black letter approach, the relevant legislative provisions and case law will be critically analysed. Further references will be made to secondary sources. Following a critical examination of issues under concern, conclusions will be drawn whether the Sri Lankan law, in the area of directors’ duty of care and skill, is in need of reform