Hans Tjio, ‘Adjudicating Intermediary-Related Losses’

ABSTRACT
Three-party situations are problematic due to the agency, information and administrative costs involved. This includes the substitution of parties in relationships characterized as choses in action, which is why we see them as property transfers even if that is not fully accurate. We also create separate personality to help compress the number of parties involved in a transaction but that still contains separate layers within an artificial entity. It is not possible to fully avoid the use of intermediary analysis once there are dealings with the outside world in situations of coownership of property or co-sharing of power and so the goal is to keep costs low.

The problem is not with agency costs as principals are well protected today. But that then shifts informational costs to third parties, particularly if objective standards are imposed on them. This lowers the administrative costs of adjudication but if so we need to get those standards right in order to minimize total costs. At the moment much of the work is done through the doctrine of notice and burden of proof, which could turn on how a case is pleaded. This may be too onerous for third parties and could in fact increase transactional costs if principals are not incentivized to control agency costs. There needs to more notice-creating mechanisms and perhaps more principled ways to apportion losses.

Tjio, Hans, Adjudicating Intermediary-Related Losses (July 2021). NUS Law Working Paper No 2021/016, EW Barker Center for Law and Business Working Paper 21/05.

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