Board duties: the duty of loyalty and self-dealing

2021 ◽  
pp. 200-219
Author(s):  
Marco Corradi ◽  
Geneviève Helleringer
Keyword(s):  
Duty Of Loyalty

Fiduciary Law, Good Faith, and Publicness

2019 ◽  
pp. 762-779
Author(s):  
Hillary A. Sale
Keyword(s):  
Case Law ◽  
Corporate Law ◽  
Good Faith ◽  
Fiduciary Duty ◽  
Red Flags ◽  
Corporate Development ◽  
Duty Of Loyalty ◽  
Trust Law

This chapter uses corporate law as a case study to evaluate the content of the fiduciary duty of good faith. Tracing its development from Van Gorkom through to the present, the chapter shows how good faith, though part of the duty of loyalty, has become a gap filler, policing the space between generally exculpated breaches of care and the more obvious breaches of loyalty. This chapter also surveys good faith case law to show the most common “red flags” for which corporate officers and directors should be monitoring. An analysis of two of the most recent good faith cases—City of Birmingham and In re Wells Fargo—show how the theory of publicness can be used to predict future good faith developments. Finally, the chapter ends by showing that the duty of good faith’s expansion into trust law parallels its corporate development by emphasizing its gap-filler function.

EU Loyalty

2019 ◽  
pp. 45-80
Author(s):  
Christina Eckes
Keyword(s):  
The European Union ◽  
National Interests ◽  
Member States ◽  
Eu Membership ◽  
Legal Obligations ◽  
External Relations ◽  
The Common ◽  
Duty Of Loyalty ◽  
International Representation ◽  
The Eu

Chapter 2 discusses the legal consequences and deeper meaning of EU loyalty with particular attention to external relations. It identifies specific active and passive obligations flowing from the principle of sincere cooperation in the context of EU external relations and argues that they are best understood as forming part of a comprehensive duty of loyalty. EU loyalty endows EU membership with a distinctive meaning. It is central to imposing a quasi-federal discipline and making sovereign states ‘Member States of the EU’ by acting as a tool that can at times take specific legal obligations beyond the letter of the law. EU loyalty legally restrains Member States from exercising their rights as independent international actors in a way that finds no parallel beyond the European Union. It may require placing the common Union interest above national interests. The concept of unity of international representation has a particular capacity to deepen and widen the obligations flowing from EU loyalty. It amplifies the effects of EU loyalty on the scope of legal action of the Member States, including in the field of reserved competences. It is also part of the explanation of why loyalty has more stringent consequences externally rather than internally. This in turn means that the duty of loyalty has a particular integrative force in the context of external relations. Chapter 2 also argues that this stringent understanding of EU loyalty is justified by the nature of external relations and that this justification should be (better) explicated by the EU institutions in order to justify EU external actions vis-à-vis EU citizens.

Fiduciary Law as Equity’s Child

Equity ◽  
2018 ◽  
pp. 113-151
Author(s):  
Irit Samet
Keyword(s):  
Common Law ◽  
Legal Reasoning ◽  
Active Role ◽  
Fiduciary Duties ◽  
Contractual Obligation ◽  
The Law ◽  
Duty Of Loyalty ◽  
Contractual Obligations ◽  
The Relationship ◽  
The Way

This chapter challenges the argument that one of Equity’s most distinctive doctrines, fiduciary law, must be fused with a common law doctrine—the law of contract. In particular, it highlights the disadvantages of transforming the equitable duty of loyalty into an ordinary contractual obligation. The chapter first considers the ‘contractarian’ interpretation of fiduciary law according to which fiduciary duties are no more than a species of contractual obligations before explaining why, in contrast with the contractarian argument, Equity was right in claiming that the fiduciary relationship was essentially different from contract. After making the case of why fiduciary law should be treated as a sui generis equitable doctrine, the chapter examines two features of equitable fiduciary law that will change dramatically if the fusion suggestion is adopted (the language in which it is set and the way into the relationship) and shows the adverse consequences of moving in that direction. It concludes with the contention that the concept of ‘conscience’ still has an active role to play in the legal reasoning about fiduciaries.

Emotional Defence Lawyers

2019 ◽  
Vol 3 (2) ◽  
pp. 282-299
Author(s):  
Lisa Flower
Keyword(s):  
Impression Management ◽  
Justice System ◽  
Management Strategies ◽  
Emotion Management ◽  
Legal Professional ◽  
Justice Systems ◽  
Duty Of Loyalty

Abstract The emotions of defence lawyers have garnered little sociological attention. This is surprising, as their role requires them to show loyalty to clients, representing them in court irrespective of the client or the crime. Theirs is thus an emotionally demanding role, requiring the management of inappropriate emotions. This essay explores this by showing that justice systems have structurally embedded emotional regimes guiding emotional performances. My study reveals these invisible rules, along with the ways in which one category of legal professional in particular – defence lawyers – performs its role in the Swedish justice system. The material considered includes fieldnotes gathered from an extensive courtroom ethnography and interviews with defence lawyers. The analysis looks at how defence lawyers perform their duty of loyalty, and finds it to be an interactional accomplishment demanding emotion management and impression management strategies ensuring conformity to the emotional regime of law.

Shaping and Re-shaping the Duty of Loyalty in Japanese Law

2019 ◽  
Vol 14 (S1) ◽  
pp. S119-S146
Author(s):  
Eriko TAOKA
Keyword(s):  
Fiduciary Duty ◽  
Duty Of Care ◽  
Fundamental Nature ◽  
Duty Of Loyalty ◽  
Japanese Law ◽  
The Relationship ◽  
Conceptual Relationship ◽  
Corporate Trust

AbstractThe duty of loyalty has been notoriously vague since its introduction into Japanese law. The vagueness of the duty becomes particularly problematic because although the duty overlaps with the duty of care, a breach of each of the duties is subject to different remedial rules. By focusing primarily on duties owed by a trustee and agent, this article attempts to re-define the duty of loyalty and clarify the conceptual relationship between the duties of loyalty and care in Japanese law. The article first explains the current complexity in the scope and nature of the duty of loyalty, and the relationship between the duties of loyalty and care in corporate, trust, and agency laws in Japan. Second, borrowing ideas from Lionel Smith's account of the fundamental nature of the fiduciary duty, this article attempts to re-shape the concept of the duty of loyalty while properly differentiating it from the duty of care in Japanese law.

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