scholarly journals Private law and public regulation for investor protection in the asset management industry: aims and practices of transposing the UK model in China

2020 ◽  
pp. 1023263X2095837
Author(s):  
Dr Joseph Lee ◽  
Mr Yonghui Bao
Keyword(s):  
Asset Management ◽  
Common Law ◽  
Investor Protection ◽  
Duty Of Care ◽  
Fiduciary Duties ◽  
Legal Transplant ◽  
Regulatory Approach ◽  
Enforcement Mechanisms ◽  
The Uk ◽  
Asset Managers

The paper discusses how asset managers are regulated in the UK in order to provide investor protection and market confidence. Fiduciary duties and the duty of care in the English common law, statutory laws, the rules of the FCA, and other industry codes are examined to provide an explanation of the UK regulatory approach to the asset management industry. The paper then discusses the extent to which a legal transplant of the UK model to China may be feasible as the asset management industry is currently being reformed in China. Recommendations are made for China to develop an independent asset management industry, to provide more investment outlets for investors, and to have effective enforcement mechanisms of laws and rules to deliver market confidence and investor protection.

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.

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.

13. Rights and Duties of Membership

2020 ◽  
pp. 365-378
Author(s):  
Geoffrey Morse ◽  
Thomas Braithwaite
Keyword(s):  
Common Law ◽  
Duty Of Care ◽  
Fiduciary Duties ◽  
Unfair Treatment

This chapter addresses the rights and obligations of membership. It explains what a member's share in the LLP entails, and considers how the share can be assigned or treated as property. It considers the duties that members owe to the LLP and to each other, including both fiduciary duties and those that arise under a common law duty of care. It considers what duties a member may have to outsiders, and also the protections that a member may have in the event of unfair treatment by the LLP.

scholarly journals BUSINESS JUDGEMENT RULE: KETENTUAN DAN PELAKSANAANNYA OLEH PENGADILAN DI INGGRIS, KANADA DAN INDONESIA

2020 ◽  
Vol 32 (2) ◽  
pp. 275
Author(s):  
Yafet Yosafet Wilben Rissy
Keyword(s):  
United Kingdom ◽  
Company Law ◽  
Duty Of Care ◽  
Fiduciary Duties ◽  
Business Decisions ◽  
The United Kingdom ◽  
Business Judgment Rule ◽  
The Uk

AbstractThis article discusses the provisions of business judgment rule (BJR) in the company law and the application of BJR by the courts in the United Kingdom (UK), Canada and Indonesia. In the UK and Canada, the courts have been long examined the appropriateness of directors’ business decisions. Later, BJR was codified into the Canadian Business Corporations Act 2019, meanwhile, duty of care and fiduciary duties were codified into the UK 2006 Companies Law which implicitly regulates BJR. Indonesia adopts BJR in the Company Act 2007 but the courts rarely examine directors’ business decisions and the adoption needs to be rearranged systematically.IntisariArtikel ini membahas bagaimana dan kapan pengadilan menguji aturan penilaian bisnis (APS) dan bagaimana APS diatur dalam hukum perusahaan di Inggris Raya, Kanada, dan Indonesia. Pada pengadilan Inggris dan Kanada yang menganut tradisi hukum kebiasaan, APS telah lama diterapkan untuk menilai keputusan bisnis direktur. Baru-baru ini, APS dikodifikasikan ke dalam Undang-Undang Perusahaan Bisnis 2019. Sementara itu, tugas direktur untuk peduli dan tugas fidusia juga dikodifikasikan ke dalam Undang-Undang Perusahaan Inggris 2006 yang secara implisit mengatur APS. Indonesia juga mengadopsi APS dalam Undang-Undang PT 2007 tetapi pengadilan jarang menguji keputusan bisnis direktur dan adopsi ini perlu diatur ulang secara lebih sistematis.

China’s asset management industry: mapping the global landscape

2020 ◽  
Vol 21 (2/3) ◽  
pp. 93-96
Author(s):  
Jeff Yao ◽  
Shaji Ravendran ◽  
Haiyang Zhang
Keyword(s):  
Financial Market ◽  
Capital Markets ◽  
Asset Management ◽  
Foreign Asset ◽  
Content Type ◽  
Overseas Investment ◽  
Management Institutions ◽  
The Uk ◽  
Asset Managers ◽  
Opening Up

Purpose The purpose of this article is to describe the globalization process of China’s asset management industry. Design/methodology/approach This article looks at the globalization of China’s asset management industry from a bilateral perspective. On one hand, it analyzes new measures promulgated in China to expand the opening up of capital markets and attract foreign asset management institutions. On the other hand, it gives an introduction on some advisable choices for Chinese asset management companies to invest overseas. Findings With the promulgation of the Shanghai Guidebook for Overseas Asset Management Institutions among other measures that further liberate China’s financial market, 2020 marks an important era for foreign asset managers. Besides, this article suggests that Luxembourg, Ireland and the UK are ideal European destinations for Chinese asset management companies to invest in. Practical implications This article aims to keep foreign asset managers updated of new rules regarding financial market liberalization in China and help them to expand business in Shanghai. This article also gives a brief introduction on the fund industry in Ireland, Luxembourg and the UK, to give those Chinese asset management companies which are considering overseas investment some inspiration. Originality/value Practical guidance from experienced lawyers in the practice of foreign investment and capital markets.

Asset Allocation Strategies and Commodities

2018 ◽  
Author(s):  
Claudio Boido
Keyword(s):  
Asset Allocation ◽  
Asset Management ◽  
Central Banking ◽  
Fixed Income ◽  
Fixed Income Securities ◽  
Asset Classes ◽  
Alternative Beta ◽  
Asset Managers ◽  
Selection Of ◽  
Allocation Strategies

As a result of the financial crisis of 2007–2008 and subsequent central banking decisions, the asset management industry changed its asset allocation choices. Asset managers are focusing their attention on the search for new asset classes by taking advantage of the new opportunities to capture risk premia with the aim of exceeding the returns given by traditional investments, including traded equities, fixed income securities, and cash. By doing so, they are trying to improve the selection of alternative assets, such as commodities that sometimes have relatively low correlations with traditional assets. The chapter begins by describing the principles of asset allocation, distinguishing between passive and active asset allocation, also focusing on beta and alternative beta. It then concentrates on how investors can gain exposure to commodities through different investment vehicles and strategies.

Investment Management and the Investment Chain

2017 ◽  
Author(s):  
Diane-Laure Arjaliès ◽  
Philip Grant ◽  
Iain Hardie ◽  
Donald MacKenzie ◽  
Ekaterina Svetlova
Keyword(s):  
Decision Making ◽  
Asset Management ◽  
Investment Decisions ◽  
Investment Management ◽  
Money Flows ◽  
Central Argument ◽  
A Chain ◽  
Asset Managers

Chapter 1 introduces the idea of the chain as related to investment management. It highlights the increasing importance and influence of the asset management industry and argues that, despite this fact, the behaviour and decision-making of asset managers has been little studied. The chapter suggests that investment decisions today cannot be understood by focusing on isolated investors. Rather, most of their money flows through a chain: a sequence of intermediaries that ‘sit between’ savers and companies/governments. The chapter introduces the central argument of the book that investment management is shaped profoundly by the opportunities and constraints that this chain creates.

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.

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