Category Archives: Equity

JiangYu Wang, ‘Enforcing Fiduciary Duties as Tort Liability in Chinese Courts’

Abstract: Fiduciary duties, once an Anglo-American concept, was codified in China’s Company Law in 2005, which made China one of the very few jurisdictions which introduced fiduciary duties through statutory provisions. Between successful or unsuccessful cases of legal transplant, China offers a third possibility on how the transplant of fiduciary duties may work in a […]

Gregory Shill, ‘The Golden Leash and the Fiduciary Duty Of Loyalty’

Abstract: In recent years, activist hedge funds have been experimenting with a novel practice in corporate governance: offering their candidates for the board of directors millions of dollars in bonus pay through a device known as a ‘golden leash’. Such arrangements, which are highly controversial, award directors for accomplishing activist objectives. An emerging body of […]

‘Who Should Terminate or Modify Irrevocable Trusts?’

Bradley ES Fogel, Terminating or Modifying Irrevocable Trusts by Consent of the Beneficiaries – A Proposal to Respect the Primacy of the Settlor’s Intent, 50 Real Property, Trusts and Estates Law Journal 337 (2016). Professor Bradley ES Fogel persuasively argues that ‘courts and legislatures should abandon trust termination by consent of the beneficiaries’ (p 378). […]

Emily Hudson, ‘A Normative Approach to the Quistclose Trust’

Abstract: This is the first article to undertake a sustained analysis of normative justifications for the Quistclose trust. Whilst much of the existing writing on this topic has focused on the better classification of such trusts – for instance, whether they are express, resulting, constructive or sui generis – this article asks why the law […]

Power, Property and the Law of Trusts Revisited: Roger Cotterrell’s Contribution to Critical Trusts Scholarship: Kent Law School, 25-26 October 2017

“In his 1987 article, ‘Power, Property and the Law of Trusts: A Partial Agenda for Critical Legal Scholarship’, published in Journal of Law and Society, Roger Cotterrell outlined for the first time a critical, socio-legal approach to the law of trusts. For Cotterrell law is both instrumental and ideological. As such, critical analysis aims at […]

Melanie Fein, ‘Are Robo-Advisors Fiduciaries?’

Abstract: This paper addresses whether robo-advisors are ‘fiduciaries’. The simple answer is ‘yes’. As registered investment advisers, robo-advisors are deemed to be ‘fiduciaries’ that owe a fiduciary duty of loyalty to their customers and can be liable for breach of fiduciary duty. But that is only half of the equation. Merely labeling robo-advisors as ‘fiduciaries’ […]

Jesse Wall, ‘The functional-formal impasse in (trust) property’

Abstract: This paper identifies an impasse between two conceptions of ‘property rights’. Formal conceptions explain ‘property rights’ in terms of an alienable right to exclude, that has moral significance in terms of individuals’ preference satisfaction, and describe a trust beneficiary as having a right against the trustees’ right. Functional conceptions explain a ‘property right’ in […]

John Mee, ‘The Past, Present, and Future of Resulting Trusts’

Abstract: This article considers the nature and future of resulting trusts, and offers a critique of the Birks/Chambers theory of resulting trusts. It argues that the current law cannot be explained, as the Birks/Chambers theory suggests, on the basis of the reversal of unjust enrichment. Instead, the law of resulting trusts is based on an […]

Christopher Bruner, ‘Opting Out of Fiduciary Duties and Liabilities in US and UK Business Entities’

Abstract: This chapter explores the extent of contractual freedom to opt out of fiduciary duties and liabilities in US and UK business entities, including the US corporation, general partnership, limited partnership, limited liability partnership, and limited liability company, and the UK limited company, general partnership, limited partnership, and limited liability partnership. Discernible commonalities emerge from […]

Mark Bennett, ‘Competing Views on Illusory Trusts: The Clayton v Clayton Litigation in its Wider Context’

Abstract: This article considers the concept of a trust that is ‘illusory’ – not in fact a trust – due to the settlor or trustee being provided with excessive powers of control or benefit by the trust deed. The New Zealand case Clayton v Clayton [2016] NZSC 29 and the earlier decisions are examined, in […]