An Equitable Right without an Effective Remedy : The (Practically) Redundant Fiduciary Duty to Avoid Actual Conflicts

Research output: Conference Papers (RGC: 31A, 31B, 32, 33)31B_Invited conference paper (non-refereed items)Yes

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Original languageEnglish
Publication statusPublished - 24 Jun 2019

Conference

Title11th Remedies Discussion Forum
LocationUniversité Paris Dauphine PSL Research University
PlaceFrance
CityParis
Period24 - 25 June 2019

Abstract

Orthodoxy suggests that fiduciary duties are proscriptive rather than prescriptive. Whilst great debates ensue over whether some duties owed by fiduciaries are properly described as fiduciary duties or not, there is no doubt that the duties both to avoid conflicts between interest and duty and to avoid conflicts between duties owed to two or more different principals are quintessentially fiduciary. Both conflict rules, though this is more often said of the latter than the former, comprise twofold functions. The more commonly encountered function describes the rules in terms of possibilities or potentialities – i.e. a duty to avoid possible or potential conflicts between interest and duty and a duty to avoid possible or potential conflicts between duties owed to multiple principals. The less commonly encountered function describes them in terms of actualities – i.e. the duty to avoid actual conflicts between interest and duty and a duty to avoid actual conflicts between duties owed to multiple principals. However, reflection reveals that the latter form of these rules, expressed in terms of actualities, are practically redundant as no effective remedy exists for its breach, which unlike most duties arise neither from acts nor omissions but mere circumstance.

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Citation Format(s)

An Equitable Right without an Effective Remedy : The (Practically) Redundant Fiduciary Duty to Avoid Actual Conflicts. / YIP, Man; LOW, Kelvin F.K.

2019. 11th Remedies Discussion Forum, Paris, France.

Research output: Conference Papers (RGC: 31A, 31B, 32, 33)31B_Invited conference paper (non-refereed items)Yes