Category Archives: Equity and Trusts

Benjamin Johnson, ‘A Theory of Corporate Fiduciary Duties’

ABSTRACT Corporate law lacks a general theory of a board’s power as fiduciary, and consequently, the law governing corporate fiduciary duties is notably unstable. This Article offers a novel theory that grounds corporate fiduciary duties in stronger microeconomic and legal foundations. The theory, coined the Judicial Monitoring Model (JMM), shows that even imperfect judicial monitoring […]

Mark Ortega, ‘Finding a Core of Sustainability in Directors’ and Officers’ Fiduciary Duties’

ABSTRACT Directors and officers have a fiduciary duty to act in the best interests of a corporation and its shareholders. Yet corporations may be employing unsustainable, short-term business models that fail to properly account for financial and systemic risks that could harm the corporation in the long term. This paper asks whether there is, embedded […]

Claudio Trovato ‘A shift from contractarianism to “characterisation”: Assessing the ideal Australian approach for determining fiduciary duties in a commercial context’

ABSTRACT In the wake of excessive judicial reliance on a contractarian approach to the assessment of fiduciary duties in commercial contexts, both judicial and academic concern has been voiced as to whether such an approach is the most appropriate to ensure fair dealing. What’s more, the emergence of novel commercial relationships facilitated by changing values […]

Eben Nel, ‘Fiduciary law in South Africa – A good time to come of age’

ABSTRACT Fiduciary law as a separate legal discipline has not been under the spotlight within a South African context. As it is often limited to its association with trustees and company directors, fiduciary law has been under-analysed and not recognized as a distinctive body of law. In this article, the position of fiduciary law is […]

Antonia Layard, ‘Public (Trust) Rights in Open Space: Day v Shropshire Council

ABSTRACT In Day v Shropshire Council (Day), the Supreme Court considered the effect of a statutory trust under section 10 of the Open Spaces Act 1906 on a subsequent purchaser. Finding for the claimant, a local resident resisting development, the Supreme Court unanimously held that the local authority’s failure to give notice and consider objections […]

Asaf Raz, ‘The Original Meaning of Equity’

ABSTRACT Equity is seeing a new wave of attention in scholarship and practice. Yet, as this Article argues, our current understanding of equity is divided between two distinct meanings: on one side, the federal courts, guided by the Supreme Court, tend to discuss equity as the precise set of remedies known at a fixed point […]

Sanderson and Popescu, ‘Tracing Without Fiduciaries: Realism in Australian Equity’

ABSTRACT In this note we argue that Full Federal Court’s decision in RnD Funding Pty Limited v Roncane Pty Limited [2023] FCAFC 28 understates the significance of its own change to the law. This is due to overlooking a persistent fiction within the English authorities on tracing, which adopted the fiduciary requirement as a gauze […]

Yifat Naftali Ben Zion, ‘Ethical Investments’

ABSTRACT The market for socially responsible investing – commonly referred to as ESG (environmental, social, and governance) investing – is experiencing rapid growth. Yet a crucial legal question, that could shape this market’s potential to better our world, remains unresolved: can institutional investors consider ESG factors when making investment decisions? These investors hold a significant […]

James An, ‘Substance and Process in Corporate Law’

ABSTRACT The central purpose of corporate law is to facilitate the relationship between the shareholders who provide the corporation’s equity capital and the managers who make the bulk of corporate decisions. Although select aspects of corporate law considers the economic merits of those decisions (‘substance’), the bulk of corporate law regulates the procedures by which […]

MacLeod and Hall, ‘Foundations of the Right of Charitable Uses’

ABSTRACT In recent years, municipalities around the United States have enacted ordinances that prohibit or restrict food-sharing in public places. These ordinances make it difficult for charitable souls to share food with those most in need. In one case, a town in Arizona arrested a woman under an ordinance that prohibits sharing food in public […]