Nicholas C. Howson
This chapter examines the principles of fiduciary doctrine that are found in Chinese law, with a particular focus on developments in law and regulation in the People’s Republic of China (PRC) after the early 1980s. It also considers the advent and elaboration of what the Anglo-American legal system calls “corporate fiduciary duties,” including partnership fiduciary duties. The chapter first provides an overview of basic conceptions of corporate fiduciary duties that entered Chinese law and practice through at least three separate tracks: academic, regulatory, and jurisprudential. It then explores corporate and partnership fiduciary duties after 2006, placing emphasis on corporate law and the law on partnerships, before discussing how corporate fiduciary duties are understood and applied by state institutions and private parties. More specifically, it explains how the Chinese courts have engaged with the idea of corporate and partnership fiduciary duties in the period after 2006, and how these doctrines have been formalized in law. The chapter shows how a particular set of legal doctrines originating in a distinct legal, political, and economic system have been given life in large part by private actors, namely, domestic PRC investors, managers, and state institutions, rather than the demands of foreign investors.
This chapter provides an overview of Islamic fiduciary law, from its origins in Quranic legislation regulating the paradigmatic case of the orphan, to its expansion in the foundational period of Islamic law at the hands of the earliest Muslim jurists to contractual relationships of agency and partnerships, the creation of trust property, and the actions of public officials. It concludes with a description of how fiduciary duties came to be understood as a more formal relationship that exists whenever one person exercises effective control over another and therefore is bound to use that power for the benefit of the person or persons under his authority across a wide variety of domains. The chapter provides a survey of both the duties of fiduciaries in Islamic law, and the remedies available to beneficiaries when fiduciaries violated breached those duties.
This chapter focuses on fiduciary principles at work in classical Jewish law. Using modern (Western) legal concepts, it places disparate halakhic rules into a rubric not found in classical Jewish legal sources. The discussion proceeds by examining the origins of fiduciary concepts in the Mishnah and how they fit into the larger system of Jewish civil liability. From there, the chapter considers fiduciary rules within the laws of bailments, guardianship fiduciary duties in agency and partnership law. The moves to contrast the relatively minimal duties of private law fiduciaries with the far more expansive obligations incumbent upon surrounding public fiduciaries, and concludes with a tentative account of the differences between Jewish and common law perspectives on fiduciary law.
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.
This chapter discusses fiduciary principles in the historical English common law. The term “fiduciary” today connotes high standards of loyalty and good faith in the performance of discrete obligations, the management of assets or the conduct of relationships, and the concept of fiduciary duty is often traced back to equitable notions of good conscience and undivided loyalty rooted in the moralistic approach of Chancery judges. However, a prior source of fiduciary standards lies in the common law doctrine of account. Legal accounting regulation began in the feudal age with Exchequer control of fees and services, rents and taxes. Feudal accounting was codified in the twelfth century to control the behavior of lords who stood as guardians for underage heirs, with particularly extensive duties being applied to guardians of wards in socage (or agricultural) tenure. Accounting systems were then extended to control management chains within manorial units embracing the lord’s farm agents of stewards, bailiffs, and reeves. The chapter then shows how the common law courts extended accounting and waste remedies to third parties through augmentation of disseisin actions to permit tracing and following procedures for entrusted assets. The prohibition of unauthorized profit-taking by fiduciaries or others in positions of influence or good faith and the use of an array of personal and proprietary remedies thus precedes the rise of the Court of Chancery by some three centuries. It is then shown how Chancery came to dominate fiduciary accounting procedures in modern times, building on an expansion of jurisdiction in the eighteenth century as the Chancellors struggled to repress managerial fraud in the private and public spheres. Today, following fusion of law and equity, we are seeing the assimilation of equitable remedies for breach of fiduciary duty with negligent liability for tortious harm, and the folding of the primary fiduciary duties into contract. Fiduciary accountability, born long ago within the early common law, is now being undermined by the blanket application of much simpler common law concepts.
Vikramaditya S. Khanna
This chapter examines fiduciary principles in Indian law. Fiduciary duties, such as those owed by corporate directors, trustees, agents, and lawyers, are commonplace in India. However, there are contexts in India where the fiduciary duties appear unusual. A particularly important example of this are the duties owed by the person (called the Karta) who manages the affairs of a Hindu Undivided Family (HUF). These duties differ from those seen in the more common types of fiduciary relationships and raise a number of interesting questions for greater exploration. This chapter first provides an overview of fiduciary duties in India that are common across many parts of the world, focusing on agency law, trust law, and corporate law. It then explains what the Karta and the HUF are, how the HUF holds property akin to a joint tenancy, how it operates, how it can be created and terminated, how it compares to the pater familias of ancient Rome, and what areas of Indian law impact its continued existence. The chapter then explores the duties owed by the Karta to people within the HUF, along with other legal rules and practical considerations that operate to police the Karta’s behavior in ways that supplement his or her limited fiduciary duties. Finally, the chapter closes with how the Karta’s duties raise some interesting questions about the growth and development of fiduciary principles that might be fruitfully explored in the future.
J. Mark Ramseyer and Masayuki Tamaruya
In this chapter, we offer a general introduction to Japanese fiduciary principles. Using corporate law as an example, we outline the scope of the duties of loyalty and care, and of the business judgment rule. We compare the application of these principles in Japan to their application in the United States, and discuss their impact on economic and non-economic activity. We briefly examine their use beyond the corporate context, and outline several recent extensions in the for-profit and in the not-for-profit sectors. Throughout, we examine both statutory and case law, and trace the evolution of the principles over time.
Richard H. Helmholz
This chapter discusses the scope of principles of fiduciary duty as they appear in the canon law. It first provides a historical background on canon law and its relation to fiduciary law, noting that the medieval church and principles of fiduciary duty were interconnected in direct and positive ways. In fact, the church was governed by many of the same principles of fiduciary law that are found in modern trust law, and these principles were fully and authoritatively stated in the Corpus iuris canonici during the twelfth and thirteenth centuries. The chapter proceeds by analyzing the Corpus iuris canonici and its two books: Gratian’s Concordia discordantium canonum, also known as the Decretum, and the books of Decretals. It also traces the development of fiduciary law inherent in some of the canonical texts and explains how fiduciary principles came to be enforced in the canon law, citing examples of the width of the scope of fiduciary principles found in English court practice, including a duty applied only to the clergy. Finally, it considers whether the modern law of trusts was shaped in any way by canonical influence.