Category Archives: Equity

Charles Rounds, ‘Arbitration Contracts Between Trustees And Their Investment Agents: A Warning Label’

Abstract This Article considers whether arbitration clauses in contracts between trustees and their investment managers are binding on the trust beneficiaries. Nowadays, it is default law that a trustee may delegate investment discretion to an investment manager (IM); provided the IM has been prudently selected by the trustee and the IM’s activities are prudently monitored […]

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 Eldridge, ‘The New Law of Penalties: Mapping the Terrain’

Abstract This paper gives an account of recent developments in respect of the penalty rule in Australia and England, before going on to explore two unresolved questions. The first is whether Australian law recognises two jurisdictions to relieve against penalties – one in equity and another at common law – or instead a unitary penalty […]

Paul Rose, ‘Public Wealth Maximization: A New Framework for Fiduciary Duties in Public Funds’

Abstract This Article challenges the standard doctrine that public pension funds should be managed solely for the benefit of plan participants and their beneficiaries. Instead, economic logic suggests that public pension fund trustees owe their duties to the public collectively. This analysis is driven by the fact that, in practice, individual pension fund claimants function […]

‘The Weakening of Fiduciary Law’

“In the 1970s and 80s, as major financial institutions grew and diversified their operations, courts and scholars recognized that fiduciary law posed profound challenges for the organizational practices of these firms. The challenges were considered existential by some: firms, ultimately, would need to slim down their operations, and perhaps even need to disaggregate some units, […]

Alexander and Burnett, ‘The New Zealand Trusts Bill: an overview of proposed reforms’

Abstract The New Zealand Parliament is considering a new Trusts Bill that replaces old legislation governing trusts. It is the most extensive change in the trusts landscape in New Zealand in 60 years. The Trusts Bill does more than express the former legislation in modern terms – it also includes substantive changes to the law; […]

Schanzenbach and Sitkoff, ‘The Law and Economics of Environmental, Social, and Governance Investing by a Fiduciary’

Abstract The use of environmental, social, and governance (ESG) factors in investing is increasingly common and widely encouraged by investment professionals and non-government organizations. However, trustees and other fiduciary investors in the United States, who manage trillions of dollars, have raised concerns that using ESG factors violates the fiduciary duty of loyalty. Under the ‘sole […]

Julian Velasco, ‘The Diminishing Duty of Loyalty’

Abstract Fiduciary duties comprise an integral part of corporate law. It is generally understood that directors owe the corporation and its shareholders two fiduciary duties: the duty of care and the duty of loyalty. Although both duties are firmly established in corporate law, they are not treated equally. It is generally understood that the duty […]

Paul Buckle, ‘Another wrong turn? The rule in Hastings-Bass in Guernsey’

Abstract In this article, Paul Buckle explores the way in which the jurisdiction of Guernsey has reacted to the Supreme Court’s recasting of the rule in Hastings-Bass, with particular focus on the case of M v St Annes Trustees Limited. € Paul Buckle, Another wrong turn? The rule in Hastings-Bass in Guernsey, Trusts and Trustees, […]

Keith Stanton, ‘Joint bank accounts and survivorship’

Abstract Who is beneficially entitled to the money deposited in a joint bank account? In the great majority of cases, it is clear that the money is jointly owned and will pass on the death of one of the account holders to the survivor. However, things are not always simple and the law then has […]