Fiduciary Principles in Contemporary Common Law Systems

2019 ◽  
pp. 564-582
Author(s):  
Matthew Conaglen
Keyword(s):  
United States ◽  
Common Law ◽  
The United States ◽  
Good Faith ◽  
Fiduciary Duty ◽  
Standards Of Care ◽  
Duty Of Care ◽  
Fiduciary Duties ◽  
Similarities And Differences ◽  
Fiduciary Relationships

This chapter examines the principles of fiduciary doctrine that are found in contemporary common law systems. More specifically, it considers the current similarities and differences between various jurisdictions such as England, Australia, Canada, and the United States. The similarities focus on the duties of loyalty, care and skill, and good faith, as well as when fiduciary duties arise and the kinds of interests that are protected by recognition of fiduciary relationships. The chapter also discusses the issue of differences between various jurisdictions with regard to the duty of care and skill before concluding with an analysis of differences between remedies that are made available in the various contemporary common law jurisdictions when a breach of fiduciary duty arises. It shows that the regulation of fiduciaries appears to be reasonably consistent across common law jurisdictions and across various types of actors, even as such actors are expected to meet differing standards of care. Statute plays a key role in the regulation of various kinds of fiduciary actors, especially corporate directors.

10. The fiduciary duty

2018 ◽  
Author(s):  
Gary Watt
Keyword(s):  
Conflicts Of Interest ◽  
Third Parties ◽  
Good Faith ◽  
Fiduciary Duty ◽  
Fiduciary Duties ◽  
Trust Property ◽  
Fiduciary Relationships ◽  
Strict Rule

The fiduciary duty is the defining duty of trusteeship and consists of several overlapping obligations intended to promote loyalty or faithfulness. As part of his fiduciary duty, the trustee should avoid conflict with the interests of the trust and not to make an unauthorised unauthorized profit from the trust property, or from his position of trust. The fiduciary duty may also apply to a person who is not a trustee, in which case he is said to be a fiduciary. This chapter examines the principal obligations of trusteeship and the implications of breach of those obligations for trustees, beneficiaries, and third parties. It first discusses the strict rule of exemplary fiduciary propriety before turning to the duty of good faith. The chapter also looks at fiduciary relationships and fiduciary duties, the fiduciary duty to avoid conflicts of interest, the fiduciary duty to account for unauthorised unauthorized profits, and trustee remuneration.

Fiduciary Principles in Legal Representation

2019 ◽  
pp. 263-285
Author(s):  
Richard W. Painter
Keyword(s):  
Conflicts Of Interest ◽  
Common Law ◽  
Fiduciary Duty ◽  
Professional Responsibility ◽  
Duty Of Care ◽  
Fiduciary Duties ◽  
Legal Representation ◽  
Mandatory Rules ◽  
The Subject ◽  
The Relationship

This chapter examines the fiduciary duties of lawyers, and especially how such duties shape—and are shaped by—their other professional responsibilities. It begins with a discussion of the legal basis of lawyers’ fiduciary duties as well as the circumstances that trigger a lawyer-client fiduciary relationship. It then considers the lawyers’ fiduciary duty of loyalty, focusing on the duty to avoid conflicts of interest, the duty of confidentiality owed by a lawyer to a client, the duty of candor, and the duty to communicate to the client information that the latter needs to make informed decisions about the subject matter of the representation. It also explores the lawyer’s fiduciary duty of care, including the duty to familiarize himself with the client’s affairs and to safeguard confidential information; the relationship between fiduciary duties and other duties of professional responsibility; cases where lawyers are subject to the specific duties of a common law trustee; and two types of mandatory rules to which lawyers, as professional fiduciaries, are subject and that cannot be waived with client consent: mandatory rules of professional responsibility and generally applicable laws. The chapter concludes with an analysis of remedies available when a lawyer commits a breach of fiduciary duty, along with the unique challenges faced by lawyers when they also become trustees for their clients or third persons.

European Unfairness and American Unconscionability: A Letter From a European Lawyer to American Friends

2019 ◽  
Vol 15 (2) ◽  
pp. 195-226 ◽  
Author(s):  
Anne-Lise Sibony
Keyword(s):  
United States ◽  
Common Law ◽  
The United States ◽  
Point Of View ◽  
Abuse Of Power ◽  
Consumer Contracts ◽  
The Common ◽  
Similarities And Differences ◽  
The Asymmetry ◽  
Contracting Process

Abstract The Unfair Contract Terms Directive (UCTD) and the Common Law doctrine of unconscionability in the United States both pursue the same aim: they seek to protect consumers against abuse of power by traders who are in a position to exploit the asymmetry of the contracting process. However, both sets of rules rest on different premises. In particular, they allocate trust differently between courts and markets. This accounts for deep-running differences despite apparent similarities. This contribution analyses these similarities and differences by commenting on the unconscionability doctrine as expressed in the Draft Restatement of consumer contracts from a European point of view.

scholarly journals Business Judgment Rule and Fairness Standards in the West: A Theoretical Review

2020 ◽  
Vol 2 (2) ◽  
pp. 556-565
Author(s):  
Irfan Iryadi ◽  
Teuku Syahrul Ansari ◽  
Iskandar Zulkarnain ◽  
Ti Aisyah
Keyword(s):  
United States ◽  
The United States ◽  
Good Faith ◽  
Duty Of Care ◽  
The West ◽  
Information Transparency ◽  
Business Judgment Rule ◽  
American Law ◽  
Rule Analysis ◽  
Research Standards

The application of the Business Judgment Rule (BJR) in the United States has also been increasingly tightened by the necessity of carrying out the duties and authority of directors based on the principle of prudence and efforts to fulfill proper information (transparency and fully disclosure) before the directors take action or decision. In a number of countries, the Business Judgment Rule (BJR) doctrine has been used quite extensively in their legal systems. One of them is in the United States. Basically there are two concepts applying the provisions applied by the American Law Institute (ALI). Second, the provisions that took place in the Delaware court. These provisions have been adopted by several courts. Overall, the Business Judgment Rule and fairness standard are separate research standards used by the court, and one does not feel confused with one another. The Business Judgment Rule analysis does not include a fair analysis, because the duty of care does not require unauthorized transactions to be the object of court examination concerned with fairness standards, only the director acts in good faith, with caution with an information base for that interest , and it does not violate wisdom.

10. The fiduciary duty

2020 ◽  
pp. 350-381
Author(s):  
Gary Watt
Keyword(s):  
Conflicts Of Interest ◽  
Third Parties ◽  
Good Faith ◽  
Fiduciary Duty ◽  
Fiduciary Duties ◽  
Trust Property ◽  
Fiduciary Relationships ◽  
Strict Rule

The fiduciary duty is the defining duty of trusteeship and consists of several overlapping obligations intended to promote loyalty or faithfulness. As part of his fiduciary duty, the trustee should avoid conflict with the interests of the trust and not to make an unauthorised unauthorized profit from the trust property, or from his position of trust. The fiduciary duty may also apply to a person who is not a trustee, in which case he is said to be a fiduciary. This chapter examines the principal obligations of trusteeship and the implications of breach of those obligations for trustees, beneficiaries, and third parties. It first discusses the strict rule of exemplary fiduciary propriety before turning to the duty of good faith. The chapter also looks at fiduciary relationships and fiduciary duties, the fiduciary duty to avoid conflicts of interest, the fiduciary duty to account for unauthorised unauthorized profits, and trustee remuneration.

Rediscovering Blackstone: wpływ Williama Blackstone’a na rozwój amerykańskiej nauki prawa w recepcji Alberta W. Alschulera

2017 ◽  
Vol 15 (2) ◽  
pp. 175-185
Author(s):  
Edyta Sokalska
Keyword(s):  
United States ◽  
18Th Century ◽  
Common Law ◽  
The United States ◽  
Law School ◽  
Large Measure ◽  
American Colonies ◽  
Late 18Th Century ◽  
American Law ◽  
The Common

The reception of common law in the United States was stimulated by a very popular and influential treatise Commentaries on the Laws of England by Sir William Blackstone, published in the late 18th century. The work of Blackstone strengthened the continued reception of the common law from the American colonies into the constituent states. Because of the large measure of sovereignty of the states, common law had not exactly developed in the same way in every state. Despite the fact that a single common law was originally exported from England to America, a great variety of factors had led to the development of different common law rules in different states. Albert W. Alschuler from University of Chicago Law School is one of the contemporary American professors of law. The part of his works can be assumed as academic historical-legal narrations, especially those concerning Blackstone: Rediscovering Blackstone and Sir William Blackstone and the Shaping of American Law. Alschuler argues that Blackstone’s Commentaries inspired the evolution of American and British law. He introduces not only the profile of William Blackstone, but also examines to which extent the concepts of Blackstone have become the basis for the development of the American legal thought.

Fiduciary Principles in Investment Advice

2019 ◽  
pp. 144-165
Author(s):  
Arthur B. Laby
Keyword(s):  
Fiduciary Duty ◽  
Duty Of Care ◽  
Complex Nature ◽  
State Law ◽  
Fiduciary Duties ◽  
Legal Obligations ◽  
Standards Of Conduct ◽  
Investment Advisers ◽  
Definition Of ◽  
Investment Advice

This chapter examines the fiduciary principles governing investment advice. Fiduciary principles in investment advice are both straightforward and complex. They are straightforward because most investment advisers are considered fiduciaries and subject to strict fiduciary duties under federal and state law. Their complex nature arises from the fact that many individuals and firms provide investment advice but are not deemed investment advisers and, therefore, are not subject to a fiduciary obligation. This chapter first explains whether and when an advisory relationship gives rise to fiduciary duties by focusing on both federal and state law, as well as the individuals and firms that typically provide investment advice. In particular, it looks at certain persons and entities excluded from the definition of investment adviser and thus not subject to the Investment Advisers Act of 1940, namely broker-dealers, banks, and family offices as well as accountants, lawyers, teachers, and engineers. The chapter also considers fiduciaries under ERISA, the Investment Company Act, and the Commodity Exchange Act before discussing the fiduciary duty of loyalty and how it is expressed and applied in investment advisory relationships; the fiduciary duty of care and how it differs from other standards of conduct, such as a duty of suitability; and other legal obligations imposed on investment advisers and how those obligations relate to an adviser’s fiduciary duty. Finally, the mandatory or default terms with regard to an investment adviser’s fiduciary duties are explored, along with remedies available for breach of fiduciary duty.

Fiduciary Principles in Corporate Law

2019 ◽  
pp. 60-78
Author(s):  
Julian Velasco
Keyword(s):  
Voting Rights ◽  
Corporate Law ◽  
Fiduciary Duty ◽  
Duty Of Care ◽  
Profit Motive ◽  
Fiduciary Duties ◽  
Common Misconception ◽  
Strict Enforcement ◽  
Default Rules ◽  
Moral Requirements

This chapter examines fiduciary duty in corporate law. Fiduciary duty is pervasive as well as all encompassing in corporate law. One common misconception about fiduciary duty in corporate law is that it is merely aspirational. Fiduciary duties are not simply moral requirements, they are legal ones. They are not merely suggestions, they represent the demands of the law. Although corporate law has often compromised rather than insisting upon strict enforcement of fiduciary law principles, these compromises are due to practical considerations that are entirely consistent with the goals of fiduciary law. In corporate law, general fiduciary law principles are balanced with practical considerations concerning the profit motive in order to achieve the best overall result for the shareholders. Understanding this tension between ambition and practicality is key to understanding fiduciary duty in corporate law. This chapter first considers the triggers for fiduciary duty in corporate law before discussing the role that the duty of loyalty plays in corporate law. It then explores the duty of care in corporate law, along with other fiduciary duties such as good faith, takeover situations and contests for control, shareholder voting rights, and the duty to monitor and the duty to disclose. The chapter proceeds by analyzing mandatory and default rules regarding the extent to which fiduciary duties can be waived in corporate law and concludes with an overview of remedies for breach of fiduciary duty.

NCSS notable trade book lesson plan: the girl who buried her dreams in a can

2020 ◽  
Vol 15 (2) ◽  
pp. 121-126
Author(s):  
Takisha Durm
Keyword(s):  
United States ◽  
Research Design ◽  
Design Methodology ◽  
Lesson Plan ◽  
The United States ◽  
Elementary Grades ◽  
Effect Change ◽  
Content Type ◽  
Similarities And Differences ◽  
Future Date

PurposeThe Girl Who Buried Her Dreams in a Can, written by Dr Tererai, profiles a cultural, yet global experience of the power of believing in one's dream. Through this study of the similarities and differences of how children in the United States and abroad live and dream of a better life, this lesson seeks to enhance students' understandings of the power and authority they possess to effect change not only within their own lives but also in the lives of countless others in world. After reading the text, students will work to create vision boards illustrating their plans to effect change within their homes, schools, communities, states or countries. They will present their plans to their peers. To culminate the lesson, the students will bury their dreams in can and collectively decide on a future date to revisit the can to determine how far they have progressed in accomplishing their goals.Design/methodology/approachThis is an elementary grades 3–6 lesson plan. There was no research design/methodology/approach included.FindingsAs this is a lesson plan and no actual research was represented, there are no findings.Originality/valueThis is an original lesson plan completed by the first author Takisha Durm.

Law and Lawyers in the United States: The Common Law under Stress

1967 ◽  
Vol 80 (4) ◽  
pp. 916
Author(s):  
Lord Denning ◽  
Erwin N. Griswold
Keyword(s):  
United States ◽  
Common Law ◽  
The United States ◽  
The Common
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