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INTRODUCTION

In Malaysia, before 2007, the rules enunciated in Foss v. Harbottle^[1] had always been the cardinal principle governing derivative actions. The introduction of an alternative statutory regime for derivative actions was one of the key amendments to the Companies Act 1965 in 2007.^[2] More recently, derivative action has become a statutory remedy with the abrogation of the right to commence derivative actions under common law following the enactment of the Companies Act 2016.^[3]

A derivative action is a legal action where a complainant initiates proceedings on behalf of or as a representative of, the company. It is also known as a representative action. The complainant is usually someone without controlling power in the company; otherwise, the company would face no difficulty initiating such action in its own name. The rationale for this lies in the very nature of a company as an artificial legal entity controlled by its owners and representatives, with its decisions ultimately reflecting the will of those in control.

I. Introduction

1. The Honourable Dr Justice D.Y. Chandrachud, Chief Justice of India, The Honourable Mr Justice Manmohan, Acting Chief Justice, High Court of Delhi, the Honourable Mr Justice Vibhu Bakru, Chairperson, Organising Committee, Delhi Arbitration Weekend, Honourable Judges of the Supreme Court of India and the High Court of Delhi, Distinguished Guests, Ladies and Gentlemen, Good Evening.

2. First, I would like to thank the organisers of DAW for inviting me to participate in this most prestigious occasion. Since receiving the invitation, I have been reading up on arbitration in India and have learned that the Delhi International Arbitration Centre is at the forefront of a most exciting expansion of arbitration here. The establishment of this annual conference, DAW, is just one example of how the DIAC is a premier thought leader and educator in this process. I am deeply honoured to have been asked to address this distinguished gathering.

Globally, there is an unfettered right of access to court proceedings by the public, which is consilient with the principle of open justice as it is regarded as an essential tenet of any justice system to guarantee public confidence, independence, and accountability in the administration of justice. In Malaysia, Section 15 of the Courts of Judicature Act 1964 states that all civil and criminal matters shall be deemed to be open and accessible to the public. Journalists are often keen to report on cases that are newsworthy and those that garners public interest wherein they act as an intermediary between the public and the courts.

To generations who have passed their lives in the law his is truly clarum et venerabile nomen. Lord Denning was a colossus who strode the judicial landscape in the second half of the last century shedding lambent light on ticklish legal corners and illuminating the legal and judicial landscape with his effulgence. He was unique. His tenure as a judge expanded the universe of judicial discourse. This year 2024 marks his 125th birth anniversary (January 23) and today, March 5 is his 25th death anniversary. It is appropriate that we remember him, draw inspiration from his life and work and salute his memory.