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Index

Published online by Cambridge University Press:  22 November 2023

Edited by
Seth Davis ,
Thilo Kuntz  and
Gregory Shaffer
Seth Davis
Affiliation:
University of California, Berkeley School of Law
Thilo Kuntz
Affiliation:
Heinrich-Heine-Universität Düsseldorf
Gregory Shaffer
Affiliation:
Georgetown University Law Center, Washington DC

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Transnational Fiduciary Law , pp. 299 - 312
Publisher: Cambridge University Press
Print publication year: 2024
Creative Commons
Creative Common License - CCCreative Common License - BYCreative Common License - NCCreative Common License - ND
This content is Open Access and distributed under the terms of the Creative Commons Attribution licence CC-BY-NC-ND 4.0 https://creativecommons.org/cclicenses/

Index

access platforms, 281, See also Airbnb; Facebook; Google; Twitter; Uber
corporate social responsibility guidance rules for, 282
duty of fairness in entry and exit rules, 291, 297
duty of loyalty owed to users by, 288, 292–293
duty of to mitigate discrimination, 293–296
duty of to provide prior notice before changing locations, 296
jurisidictional interest in social impacts of, 282
legal role of as private actors, 278, 279, 280, 287
as market-constituting fiduciaries, 33, 279, 280, 287–289, 291–293, 298
multiple beneficiaries’ problem in, 290, 291
as norm creators, 284, 285, 298
power over users held by, 23, 282, 283, 287, 289, 290, 292, 298
public utilities approach to, 284, 285
responsibilities of platforms towards users, 23, 279, 280, 290, 291, 292, 293, 295
self-regulation of terms of service in, 282, 284
service role of, 289–291
as transnational companies, 282
vs. Facebook and Google type platforms, 280
vs. traditional fiduciaries, 287
advocacy, transnational legal, 13, 16, 151, 159, 164, 166
Africa, U.K. imperialism in, 254, 259
agency problems, 99, 107, 110, 111, 202, 242, 248
aging, of East Asian societies, 213
Airbnb, 278, 280, 281, 284, 289, 292, 293, See also access platforms
Community Commitment policy of, 295
cooperation with local governments of, 282
discrimination and, 294, 296
power over users of, 282
Amazon, 280, 281, 284, 293
U.S. court ruling on, 282
Anglo-common law, 183
Annan, K., 163
Armitage v. Nurse, 174
Ashgar Leghari v. Federation of Pakistan, 165
Australian fiduciary law, 46, 93
corporate directors duties in, 94
divergence of corporate directors duties from U.S., 223–224
duty of care and international court communication and, 69–71
Nauru case against, 258
population statistic compiling on Aboriginal peoples and, 253–254
autonomy-enhancing ideal in fiduciary law, 238, 239, 241–242, 259
Bartlett v. Barclays Bank, 175–177
Bishop, J., 282
BlackRock, 65–66, 84
bond markets, 27, See also net-short debt investing; Windstream v. Aurelius
fiduciary duties between bondholders and CDS counterparties, 134–135
fiduciary duties within bondholder group, 132–134
International Capital Markets Association (ICMA) and, 137–138
transnational as non-state law, 140
transnational as private legal ordering, 125–126, 136–137
transnational fiduciary duties in state law, 141–143
Bristol & West Building Society v. Mothew, 68, 70, 94
Bürgerliches Gesetzbuch. See under German fiduciary law
Burke, E., 3, 31, 249–250
Cayman Islands, 2, 28, 172
Channel Islands, 172
Charitable Corp v. Sutton (“Sutton’s case”), 219
Cherokee Nation, 250–252
Children’s Trust (NGO), 4, 153, 165
Chinese fiduciary law, 45, 207–209
Chinese Trust Law, 184
Confucian influence in, 189
diffusion of trust law in, 56–58
modernization of in 19th and early 20th centuries, 193
trust law in, 208
civil law countries, 8, 11, 12, 37, 38
civil law trusts and, 187, 214
civil law trusts in East Asian countries, 170, 179–186
civil society in East Asian countries and, 213
duty of care and international court communication, 69–71
duty of care in, 43
duty of loyalty in, 43
duty of loyalty in vs. in common law countries, 68–69, 181–183, 211
fiduciary duties between bondholder and issuer in, 131–132
fiduciary duties within bondholder groups in, 134
public trust doctrine in, 154, 156
transnational fiduciary law in, 40, 41, 45–46
civil law East Asia, 190, See also Chinese fiduciary law; civil law countries; Japanese fiduciary law; South Korean fiduciary law; Taiwanese fiduciary law
climate change, 7, 16, 27, 28, 149, 153, See also environmental law and regulation
human rights litigation for, 4, 164
international climate change litigation, 153, 164, 165
micro-TLOs for addressing, 162
Urgenda decision of the Hague District Court, 164
coercive enforcement of law, 264, 267, 276
colonialism, 9, 10, 20, 22, 188, See also imperialism in fiduciary law; League of Nations mandate system; Native Americans, fiduciary colonialism against
of Japan in South Korea and Taiwan, 193, 194, 209
origins of modern international law and, 31
Western over China, 193
common law countries
common law East Asia, 189, 197–199, 201–203
corporate directors duties and, 219–225
duty of care and international court communication and, 69–71
duty of care in, 43
duty of loyalty in, 43
duty of loyalty in vs. in civil law countries, 68–69, 181–183, 211
fiduciary duties between bondholder and issuer in, 128–131
fiduciary duties within bondholder groups, 133
Hong Kong and Singapore as, 189
Japanese fiduciary law and, 192
public trust doctrine in, 154, 156
transnational fiduciary law in, 41, 45–46
trust transplantation to civil law countries, 179, 180
common law East Asia, 189, 197–199, 201–203, See also common law countries; East Asian fiduciary law; Hong Kong; Singapore
comparative law
vs. transnational law, 40, 41, 43, 46–48
conflict of interest management, financial conglomerates and, 87–88
insider trading and, 89–90
mergers and acquisitions and, 88–89
conflict-of-laws principles, 25, 80–83
Confucian tradition, 189, 208
Congo Free State, 256
contract law
duty of loyalty in civil vs. common law countries and, 68–69
German fiduciary law and, 48–53
mandate contracts and, 49–52
TLO theory and, 43, 44
tort of contract cases, 82
transnational fiduciary law and, 43, 45–46
corporate codes, 30
as accountability mechanism, 219, 235
authorship of, 232
corporate scandals and crises and, 230
as norm creators, 219, 225–235
shareholders vs. stakeholder interests and, 30, 232, 233, 234
transnationalization of U.K. corporate codes, 17, 219
corporate directors fiduciary duties, 7, 29
as accountability mechanism, 219, 235
in Australia, 94
comparative across U.K., U.S. and Australia, 220, 223–224
differing definitions of across jurisdictions, 30, 222, 223, 224, 225
ESG issues and, 66
in India, 223
judicial review of by independent judges, 29, 91
as legal transplantation of British law, 220
policing of self-dealing by, 18
stakeholder interests and, 223, 224
in U.K. law, 219
corporate law and governance. See also corporate codes; corporate directors fiduciary duties; environmental, social, and governance (ESG) standards; stewardship codes
in China, 207–209
in common law East Asia, 201–203
convergence theory vs. path dependence theories, 221
corporate social responsibility guidance for access platforms, 282
Delaware approach in, 42, 62, 66, 75, 81, 82
divergence of U.S. from U.K., 18, 222, 223
divergence of U.S. from U.K./Australia, 223
dominance of American model of in 1990s, 199
ESG standards and, 65
family-controlled companies, 190, 193, 199, 201, 202, 213, 231, 232
OECD Principles of Good Governance, 24, 90–92
path dependence theories in, 30, 219, 221, 225, 235
post-financial crisis developments in Japan, 204–207
scandals and crises in, 217, 218, 225
shareholder primacy model of, 20, 21, 29, 199, 206
Sinclair Oil Corp. v. Levien, 80, 81
social role of corporations and, 217
stakeholder-oriented model of, 62, 65, 66, 91, 223, 224, 233, 234
transnational framework for, 17, 29, 217
UN and OECD as standards-setters for, 42, 61, 90–92
U.S. influence on Japanese, 196–197, 203–204, 212
U.S. vs. Japanese norms, 29
Cortés, H., 245, 246, 255
courts, 4, 16, 32, 34, 151
convergence of on public trust norms, 166
court communication between nations, 68, 69–71
fiduciary law and, 77
International Court of Justice, 258
judicial reasoning in development of fiduciary law, 221
judicial review of corporate directors by independent judges, 29, 91
liberal interpretation of trust jurisprudence, 175
public trust principle enforcement and, 165
Delaware approach in corporate law, 42, 62, 66, 75, 81, 82, 220, 223, 224
duty of loyalty and care for corporate directors and, 224
discretionary powers, 3, 13, 41, 48, 49, 72, 285
discretionary trusts, objects of, 172–175
discrimination, duty of access platforms to mitigate, 293–296
Dodge v. Ford Motor Co., 62
domestic law
convergence around public trust principles and, 158
domestic public trust litigation, 164, 166
formation of transnational fiduciary law and, 68
horizontal legal ordering via norms, 16
transnational fiduciary law and, 17
uncertain status of in transnational law theory, 53–56
Dual Mandate in British Tropical Africa, The (Lugard), 254
duty modification clauses, 172, 175–178
duty of care, 11, 70, 101, 242
in civil vs. common law countries, 43, 69–71
contestation on, 182
in Delaware approach in corporate governance, 224
financial intermediaries and, 99
international court communication and, 69–71
as legal transplantation of British law, 220
in net-short debt investing, 125
public authorities and, 31
in U.S., 70
duty of honesty and good faith, in East Asian countries, 182
duty of loyalty, 3, 11, 23, 43, 101, 238, 242, 286
for access platforms towards users, 280, 288, 292–293
American duty of loyalty in East Asia, 201, 212
American vs. Japanese, 29, 195–196
in civil vs. common law countries, 43, 49, 68–71, 181–183, 211
in Delaware approach in corporate governance, 224
financial intermediaries and, 99
in Germany, 38
indigenous East Asian norms of, 20, 188–189, 211
international court communication and, 69–71
in Japanese fiduciary law, 192
as legal transplantation of British law, 220
as meta-concept, 33
in net-short debt investing, 125, 126
public authorities and, 31
to purposes, 287
of trustees, 181–183
in the U.S., 192
varying construction of by country, 19, 68–69
varying construction of in East Asian countries, 20, 71–72
East Asian fiduciary law, 43, 45, 215
civil law trusts in, 39, 42, 170, 179–186
civil society realignment in East Asia and, 213
colonization and, 209
common law East Asia, 189, 197–199, 201–203
corporate law and governance, 201–203
diffusion of trust law in, 56–58
duty of honesty and good faith in, 182
duty of loyalty in vs. in U.S., 201, 212
exemplary trust law in, 214
fiduciary duties of trustees in, 181–183
indigenous fiduciary norms, 20, 188–189, 211
interaction of East Asian and Western fiduciary norms, 211
mechanisms of transnationalization of, 56–60, 209–212
modernization thru Western law/norms in 19th/early 20th centuries, 188–199, 209
status-based notions in, 19, 29, 183, 189, 190, 211
U.K. stewardship code adoption and, 231, 232
varying duty of loyalty construction in, 71–72
vs. Anglo-common law approaches to trust law, 186
East India Company (Britain), 3, 31, 241, 248–249
Eatwith, 278
English law. See United Kingdom (U.K.) fiduciary law
environmental law and regulation, 5, 7, See also climate change; environmental, social, and governance (ESG) standards
delay in despite growth of, 165
environmental trusteeships and, 162–163
Paris Agreement as public trust norm, 163
political dysfunction in, 149, 152
public trust doctrine and, 16, 27, 28, 146, 147, 148, 149, 151, 152, 153, 162, 166
wetlands conservation, 158–159
environmental, social, and governance (ESG) standards, 42
disclosure rules in EU law, 63–65
in France, 63
as normative thrust in transnational fiduciary law, 60–66
equity law, 69, 72
in East Asian civil trusts, 180
European Union (EU) fiduciary law, 101
conduct-of-business standards for financial services in, 104
ESG disclosure rules in, 63–65
regulatory conduct-of-business legislation, 112–124
Treaty on European Union (TEU), 112
Treaty on the Functioning of the European Union (TFEU), 112
extraterritoriality in fiduciary law, 25, 83–85
Facebook, 280, 281, 284
as information fiduciary, 23, 284
family, 29
family-controlled companies, 18, 190, 193, 199, 201, 202, 213, 231, 232
norms of deference to elders and, 20, 183, 189
fiduciary colonialism, 252
against Native Americans, 243–244, 250–253
Fiduciary Duty for the Twenty-first Century report (UNEP), 4, 16, 24, 39, 61
fiduciary law/norms, 4, 39, See also by specific countries; duty of care; duty of loyalty; imperialism in fiduciary law; transnational fiduciary law/norms; unified theory of fiduciary law
autonomy-enhancing ideal in, 238, 239, 241–242, 259
case study of public trust doctrine as transnational normative settlement, 147–152
common law and civil law jurisdictions and, 41
as counter to self-interest, 22, 23
courts in, 77
defined, 93
development of regulatory conduct-of-business standards by general norms of, 109–112
discretionary powers in, 285
as distinct body of law, 242
economic structure of, 238
emergence of modern markets and, 243–244
English law and, 8, 9
extraterritorial application of, 25, 83–85
fiduciary duties between bondholder and issuer under civil law, 131–132
fiduciary duties between bondholder and issuer under common law, 128–131
fiduciary duties between bondholders and CDS counterparties, 134–135
fiduciary duties within bondholder group, 132–134
fiduciary norms, 3
functional fiduciary law, 109, 111–112, 116, 117, 120, 122, 123–124
gap-filling function of, 21, 32, 33, 95
hard law in definition of, 77
history on, 3
hybrid system of, 39, 67
imperialism in fiduciary law, 239–241
institutionalization of, 14–18
Islamic law and, 8, 9
lack of scholarship on U.S. and European imperialism, 238
lack of transnational dimensions in scholarship of, 33, 79, 80
as meta-concept, 3, 16, 24, 31, 32, 33
regulatory agencies as producing, 12
scholarship on, 3, 39
as state-enforced law, 77, 78
transnational applications of, 80
vertical ordering of norms and TLO formation, 41
vs. transnational fiduciary law, 93–96
vs. transnational law, 78
fiduciary theory of public law, 13, 31
financial conglomerates. See conflict of interest management, financial conglomerates and
financial crisis of 2007–2009, 218
Japanese corporate governance developments after, 204–207
U.S. vs. U.K. view on causes of, 230
Financial Instruments Directive (MiFID I and II), 104, 106, 114, 116, 117, 119, 121
financial intermediaries-customer relationships, 21
convergence of regulatory standards for, 26, 98–100, 102–107
food safety standards, as norm, 266, 273, 276
French fiduciary law, 42, 63, 191
corporate social responsibility guidance for access platforms, 282
histoire croisée, 41, 56, 59
public trust concepts in French law, 154
functional fiduciary law, 21, 26, 67, 111–112, 123–124
defined, 26
IOSCO Principles as, 116
in German private law, 120
regulatory standards and private law interactions and, 117, 122
Future of the Corporation project (British Academy), 217
German fiduciary law, 41, 44, 46, 48–53, 191, See also Treuhandverhältnisse
German Civil Code (Bürgerliches Gesetzbuch (BGB)), 49, 57, 180
German Securities Trading Act, 119, 120
influence on East Asian countries of, 194
mandate contracts and, 49–52
public trust concepts in German law, 154
regulatory conduct-of-business standards in private law and, 117–120
Treuepflicht, 46
global financial crisis of 2007–2009
Japanese corporate governance developments after, 204–207
stewardship codes in response to, 230
U.S. vs. U.K. view on, 230
global law, question of, 67
global tech entrepreneurship, 172
global wealth
as driving offshore trust jurisdictions, 170
good faith principle, 128–130
Google, 280, 281, 284
as information fiduciary, 23, 284
governance fiduciaries, 286, 287
guardianship, 239, 259
de Vitoria on, 245–247
of Indigenous Peoples, 244–247
limiting of Indigenous sovereignty and, 249
population statistics as tool of imperial, 253
in Roman law, 245
trusts as alternative to, 214
Guiding Principles on Business and Human Rights (UN, 2011), 24, 61, 64
Hague Trust Convention, 15, 16, 38, 45, 170–171, 179, See also modern trust law/norms
Halliday, T., 5, 14, 78, 79, 86, 137, 138, 147, 150, 169, 183, 265
on legal aspects of TLOs, 266–267
hard law, 26, 212
in fiduciary law, 77
gaps in filled by fiduciary norms, 32
in transnational fiduciary law, 79
Western fiduciary norms incorporation into, 29
Hazard Analysis and Critical Control Point (HACCP) management systems, 274
Hilton v. Barker Booth & Eastwood, 94
histoire croisée, 41, 56, 58, 59
Hong Kong fiduciary law, 9, 189
adoption of English fiduciary law in, 190, 197–199, 201–203
lack of charity commission in, 213
trust law in, 208, 209
wealth management centers and, 172
Zhang v. DBS case and, 176–177
horizontal legal ordering, 16, 28, 41, 53, 72
among onshore/ offshore jurisdictions and civil/common law jurisdictions, 170, 172
of corporate governance codes, 30
horizontal transmission of U.K. stewardship codes, 231–232
local level normative settlement and, 30
transnational fiduciary law formation and, 24, 25, 34, 41, 42, 53, 56–60, 72
human rights
climate change litigation and, 4, 164
fiduciary norms for corporate respect of, 2, 61
human rights standards, 266
international human rights law, 31
hybrid system of fiduciary law, 39, 67
imperialism in fiduciary law, 9, 239–241, 259, See also League of Nations mandate system; Native Americans, fiduciary colonialism against
Burke on trust obligations of imperial officials and, 249–250
East India Company and European, 31, 241, 248–249
lack of scholarship on U.S. and European, 238
population statistic compiling on Aboriginal peoples in Australia and, 253–254
resistance and, 31, 239, 246, 247, 251, 258
Spanish imperialism in Mexico, 244–248, 254–255
U.K. imperial theory and accounting practices in Africa, 254
independent judges, 29, 91
judicial reasoning in development of fiduciary law, 221
indeterminacy/contradictions within legal orders, TLO emergence and, 21, 22, 277
Indian fiduciary law
corporate directors fiduciary duties in, 223
East India Company in, 248–249
public trust doctrine in, 155, 156, 157, 164
trust law, 9
Indian guardianships, 237, 241, 252
Indigenous Peoples, 2, 9, 22, See also imperialism in fiduciary law; League of Nations mandate system; Native Americans, fiduciary colonialism against
guardianship ideology and practices against, 244–247
resistance of, 246, 247, 251, 258
Spanish imperialism in Mexico and, 244–248
Taungurung Peoples of Australia, 253–254
Tlaxcalans (Indigenous Mexicans), 244, 246, 254–255
industrial trusts, 178
information fiduciaries, 23, 32, 33, 285
critique of, 23, 285
defined, 284
insider trading, 89–90
institutional investors, 3, 17, 30, 84, 205, 227, 230, 231, 232
International Capital Markets Association (ICMA), 27, 133, 137–138
International Conduct of Business Principles (IOSCO)
as functional fiduciary law, 109, 111–112, 116
international law
international private law, 56
transnational fiduciary law and, 17
International Organization for Standardization (ISO), 32, 264, 277
as case study of transnational public fiduciary theory, 270–275
fiduciary duties to stakeholders of, 271–272, 273
HACCP framework use of, 274
as TLO, 32
International Organization of Securities Commissions (IOSCO), 21, 26, 92, 102
financial intermediary-customer relationships standards and, 100
International Conduct of Business Principles of, 102–107
Principles of as functional fiduciary law, 109, 111–112, 116
international organizations, as standards-setters in corporate law, 6, 42, 61, 90–92
international private law, 56
international public trust litigation, 152, 166
International Swaps and Derivatives Association (ISDA), 104, 134, 135
Investment Advisers Act of 1940, 83, 84
Investment Services Directive (ISD), 104
investor protections, 109, 220
in civil vs. common law countries, 29
Investor Stewardship Group (ISG), 232
Islamic law, 8, 9
Italy
Environment Ministry and public trust, 156
Ito Review, 205
Japanese fiduciary law, 29, 39, 45
Civil and Commerical Code of, 191–192
corporate governance developments post-financial crisis, 204–207
diffusion of trust law and, 56–58
duty of loyalty construction in, 71–72
duty of loyalty in vs. in U.S., 195–196
influence of on Korea and Taiwan, 193–195
influence of U.S. on, 195–197
Ito Review, 205
Japan Revitalization Strategy, 205
Japanese Trust Act, 182, 184, 192
Japanese vs. U.S. corporate governance norms and, 29, 212
reception of Western legal norms by (19th and early 20th), 191–192
reform of guardianship system, 213
status-based notions in, 19, 29, 183, 189, 190, 211
U.S.–Japan Structural Impediment Initiative, 197
Juliana v. United States, 165
jurisprudential study of fiduciary law, 14, 31, 264, 267, 268, 269, 270, 277, 279
access platforms as market-constituting fiduciaries and, 32, 33
ISO authority and, 32, 267, 276
legitimate authority and, 268
vs. sociolegal study, 6, 264
law matters hypothesis, 29, 30, 219, 220–221, 225
critiques of, 30, 222
law, national. See also by specific country; domestic law; duty of care; duty of loyalty
formation of transnational fiduciary law and, 68
uncertain status of in transnational law theory, 53–56
lawyers and legal intermediaries
insider trading restrictions at law firms and, 89–90
lawyers as trusted agents in 19th century U.S., 243–244
TLO formation and, 21, 22
League of Nations mandate system, 10, 20, 241
accounting practices of, 257–258
as first TLO, 240, 244, 256, 257
public fiduciary theory and, 150
sacred trust of civilization institutionalization by, 31, 240, 244, 255, 256, 258
trusteeship as justification for, 9
U.S. role in creation of, 255
legitimacy, of TLOs, 264, 267–268
lex mercatoria, 32, 44, 54, 60, 265, 275, 276
critiques of as not actual law, 32, 136, 264, 268, 276
liability, fiduciary, 88–89
Litchfield Law School, 243
local level legal practices
access platforms and, 279, 282, 297
corporate directors duties and, 222, 225
local norm divergence and, 30
normative settlement and, 5, 17–19, 21, 24, 28, 29, 30, 55, 67, 150, 157, 158, 159, 160, 169, 178, 208, 215, 216
Loi Pacte (French fiduciary law), 42, 63
Lone Wolf v. Hitchcock, 252
Loughlin, M., 264, 268, 269, 276, 277
Louisianan fiducuiary law, 39
loyalty to the corporation, 189
Lyft, 283, 296
M.C. Mehta v. Kamal Nath, 153
mandate contracts, 49–52
market-constituting fiduciaries, access platforms as, 33, 279, 280, 287–289, 291–293, 298
emerging TLO for regulation of, 33
mergers and acquisition, 88–89
Mexico, Spanish imperialism in, 244–248, 254–255
micro-TLOs, 33
natural resource management problems and, 152, 162, 166
United Nations Convention on the Law of the Sea (UNCLOS) as, 161–162
World Heritage Convention as, 161–162
MiFID I and MiFID II. See Financial Instruments Directive (MiFID I and II)
modern trust law/norms, 15, 22, See also Hague Trust Convention
as an alternative to guardianship, 214
in China, 208
civil law trusts, 187, 214
civil law trusts in East Asian countries, 56–58, 179–186
as contributing to TLO theory, 170, 186
courts’ liberal interpretation of trust jurisprudence, 175
development of in India, 9
diffusion of, 56–58
duty modification clauses and, 175–178
East Asian as exemplary, 214
East Asian vs. Anglo-common law approaches to, 186
English trust law and, 2, 8, 9, 183, 184, 185, 186, 187
fiduciary duties of trustees in East Asia, 181–183
formation of thru entanglement of national laws, 56–60
horizontal interactions among onshore/offshore jurisdictions, 170, 172
increased demand for trust management, 28, 172
industrial trusts, 178
jurisdictional competition for trust business and, 28, 170, 172, 173, 189, 203
objects of discretionary trusts in, 172–175
remedies for breach of trust, 186
rise of transnational trusts, 29, 171–172
as transnational, 2, 169, 170, 178, 186
vertical legal ordering in, 170–171
Morgan Stanley, 82–83
mutual funds, U.S., 83–85
Native Americans, fiduciary colonialism against, 250–253, See also Cherokee Nation; imperialism in fiduciary law; Indigenous Peoples
lawyers as trusted agents and, 243–244
natural law, public trust doctrine and, 146, 166
natural resource management, 147, 151
political dysfunction in, 149
public rights to waterways and, 146, 154, 156, 158, 253
public trust doctrine and, 27, 149, 152, 162, 166
state as trustee norm transnationalization, 28, 146
wetlands conservation, 158–159
Nauru, case brought against Australia, 258
net-short debt investing, 125–126
defined, 27, 125
Windstream v. Aurelius case study, 125–131, 143–145
Nigeria
public trust doctrine in, 157
non-binding rules, normative effects of, 62–66
non-governmental organizations (NGOs), 3, 16
growth of in Asia, 213
non-state law, transnational fiduciary law as, 140
no-profit rule, 52
norm creators
access platforms as, 284, 285
corporate codes as, 219, 225–235
normative settlement, 15, 159, 166
of fiduciary norms in transnational fiduciary law, 4, 26
at local level, 5, 17–19, 21, 24, 28, 29, 30, 55, 67, 150, 157, 158, 159, 160, 169, 178, 208, 215, 216
of public fiduciary norms, 23, 147, 148, 150
public trust doctrine and, 147–158, 165
in TLO theory, 5, 6, 15, 17, 26, 42, 47, 256
treaties as transnational, 16
numerus clausus principle of property rights, 179, 180, 181
offshore jurisdictions, 172, 186, See also modern trust law/norms
adoption of modifications of by onshore jurisdictions, 2, 28, 170
Chinese trust law and, 209
global wealth as driving of, 28, 170
trusts in vs. in onshore, 172
Ohio, 243, 244
Oklahoma, 237, 241, 252
onshore jurisdictions, 186, See also modern trust law/norms
adoption of offshore modifications by, 28, 170
horizontal competition with offshore jurisdictions, 2, 172
trusts in vs. in offshore, 172
Organisation for Economic Co-operation and Development (OECD)
Principles of Good Governance of, 24, 30, 61, 90–92, 221
as standards-setter, 42, 61
Pakistan, public trust climate change litigation in, 153, 165
Paris Agreement, 163, 166
path dependence theories in corporate governance, 30, 219, 221, 225, 235
peer-to-peer platforms. See access platforms; Airbnb; Eatwith; Turo; Uber
Permanent Building Society (in liq) v. Wheeler, 70
Permanent Mandates Commission (PMC), 257, 258
Philippines
public trust doctrine in, 164
political dysfunction, 154, 155
in environmental regulation, 149, 152
population statistics, 253–254
power. See also discretionary powers
of access platforms over users, 289, 290, 292, 298
power-conferring rules, 264, 276
in private law, 285
Principles for Responsible Investment (PRI), 65
private legal ordering, 5, 26, 87–90, 95
regulatory conduct-of-business standards in EU law and, 114
transnational bond markets as, 125–126, 136–137
public fiduciary theory, 22, 23, 149, 163, 263–264, 277
on conflict between multiple beneficiaries, 291
ISO as case study of transnational, 270–275
normative settlement of norms of, 23, 147, 148, 150
public trust doctrine, 27
in civil law countries, 154, 156
in common law countries, 154, 156
convergence around principles of across domestic legal systems, 158
domestic public trust litigation, 164
as empowering or constraining government action, 155, 156, 157
environmental law and, 16, 27, 28, 146, 147, 148, 149, 151, 152, 153, 162, 166
environmental trusteeships and, 162–163
as frame for advocacy, 151, 159, 164, 166
in Indian law, 156, 157, 164
international climate change litigation and, 153, 164, 165
as internationalized, 146, 166
legal roots of, 148
natural law understanding of, 166
in Nigeria, 157
Paris Agreement as public trust norm, 163
as potential meta-TLO, 28, 152, 162–163, 166
as solution to political dysfunction, 149, 152, 154, 155
in South Africa, 157
as study of transnational normative settlement, 147–158, 165
TLO theory and, 147
as transnational legal norm vs. TLO, 146, 147
in U.S., 156, 157, 160, 164, 165, 166
public utilities approach to access platforms, 284, 285
Ramsar Convention, 158–159, 166
recursive development of transnational fiduciary law, 5, 6, 18–20, 24, 29, 30, 31, 33, 34, 172, 174, 181, 183, 230
in civil and common law jurisdictions, 214
in East Asian countries, 73
in TLO theory, 15
regulation of transnational digital companies, 32, 33, See also access platforms
regulatory agencies, transnational fiduciary norm development, 20, 21
regulatory conduct-of-business standards
contingency problem in, 111–112
convergence of for financial intermediaries-customer relations, 98–100, 102–107
as emerging TLO, 26, 124
in EU legislative context, 112–124
as functional fiduciary law, 111–112
harmonization efforts of vs. private law, 100, 101, 109–112
International Conduct of Business Principles (IOSCO) and, 102–107
private German law and, 117–120
in U.S., 108, 109
remedies for breach of trust, 186
resistance in TLO theory, 5, 20, 29, 30, 31, 239, 246, 247, 251, 258
Roman law, 3, 8, 11, 239
guardianship and, 245
public trust doctrine and, 148, 153
sacred trust of civilization, 31, 240, 244, 255, 256, 258, See also imperialism in fiduciary law; League of Nations mandate system; Native Americans, fiduciary colonialism against
East India Company and, 249
Sax, J., 148, 153
scandals, in corporate law, 217
Schmidt v. Rosewood, 174
Schultz, T., 264, 268, 269, 276, 277
Securities and Exchange Commission (SEC), 84
Securities Industry and Financial and Markets Association (SIFMA), 27, 137
self-dealing, 18
in Japanese fiduciary law, 191, 192
self-interest, 22, 23, 48
self-regulation, 33
access platforms and, 279, 282
Shaffer, G., 5, 14, 78, 79, 86, 93, 137, 138, 147, 150, 169, 183, 263, 265
on legal aspects of TLOs, 266–267
shareholders, 66
Anglo-American common law notions of loyalty to, 20
corporate codes and, 30, 232, 233, 234
public companies holdings (1963 to 2020) by shareholder category (U.K.), 84
shareholder primacy model of corporate governance, 20, 21, 29, 66, 199, 206, 212
shareholder rights revision in Japan, 197
shareholder stewardship codes, 30, 226
in state and family-controlled firms, 18, 30
Sinclair Oil Corp. v. Levien, 80, 81
Singapore fiduciary law, 189
adoption of English fiduciary law in, 191, 197–199, 201–203
adoption of U.K. stewardship codes by, 232
charities and, 214
stewardship code of, 17, 30
trust law in, 208, 209
wealth management centers and, 172, 203
social norms, 78, 136, 138, 139
social problems, 14, 26
fiduciary frameworks and, 13, 32
public trust doctrine and, 151
TLOs addressing of, 14, 15, 16, 41
in transnational law definitions, 217
sociolegal study of fiduciary law, 6, 25, 31, 33, 43, 166
access platforms as market-constituting fiduciaries and, 32, 33
critiques of unified theory and, 34
ISO authority and, 32
as TLO framework, 147, 264, 265, 267, 277
vs. jurisprudential study, 6, 264
soft law, 24, 26, 212
in development of transnational fiduciary law, 16, 123
in formation and institutionalization of TLOs, 26
in regulation, 212
in stakeholder-oriented model of corporate governance, 42
in transnational law, 78
South Africa
public trust doctrine in, 157
South Korean fiduciary law, 45
American-style corporate governance reforms in 90s, 200
civic activities in, 213
diffusion of trust law and, 56–58
duty of loyalty construction in, 71–72
family-controlled companies (chebol) in, 201
influence of Japanese fiduciary law on, 193–195
Korean Trust Act, 184
South Sea Company, 1
sovereignty, 152, 164
concept of trust and, 31
East India Company and, 31, 249
over natural resources, 258
Spanish claims of over Indigenous lands, 245
Spanish imperialism, 244–248
stakeholder-oriented model of corporate governance, 5, 62, 65, 66, 233, 234
corporate directors duties and, 223, 224
ISO’s fiduciary duties to stakeholders, 271–272, 273
Japanese resistance to, 234
OECD good governance principles and, 91
soft law and, 42
stakeholders use of fiduciary norms, 2, 42
standards and principles, 6, 31, 61, 238, See also environmental, social, and governance (ESG) standards; International Organization for Standardization (ISO); regulatory conduct-of-business standards
autonomy and, 242
food safety standards, 266, 273, 276
human rights standards, 266
as norms, 211, 266, 273, 276
standard-setting and private ordering, 87–90
transnational standard documentation for bondholders, 134, 137, 138, 143
UN and OECD as standard-setters, 42, 61, 90–92
state law, transnational fiduciary duties and, 141–143
status-based notions, 19, 29, 183, 189, 190, 211
stewardship codes, 206
of Asian countries, 232
divergence in adopted, 232
horizontal transmission of U.K., 231–232
of Japan, 205
link between problem framing and regulatory outcomes, 230
of Singapore, 17, 30, 232
shareholder stewardship codes, 30, 226
of U.K., 17, 205, 212, 230, 231–232
Sweden
Nature Conservation Board and public trust, 156
Taiwanese fiduciary law, 45, 201
American-style corporate governance reforms in 90s, 200
civic activities in, 213
diffusion of trust law and, 56–58
influence of Japanese fiduciary law on, 193–195
Taiwanese Trust Law, 182, 184
Taungurung Peoples (Australia), 253–254
Tlaxcalans (Indigenous Mexicans), 244, 245, 246, 254–255
tort of contract cases, 82
transnational fiduciary law/norms, 4, See also by specific country; fiduciary law/norms; imperialism in fiduciary law; transnational legal orders (TLOs); unified theory of fiduciary law
access platforms as transnational companies, 281
as application of fiduciary law vs. as field deserving independent study, 76, 97
comparative contract law and, 45–46
contract law and, 43
court communication between nations, 68, 69–71
defining of, 40
differing conceptualizations of, 33, 75, 76–79
diffusion of trust law in East Asian countries and, 56–58
duty of care and international court communication, 69–71
duty of loyalty and, 68–69
emergence of in financial intermediation conduct-of-business standards, 105–107
English law and, 9
extraterritorial application of fiduciary law and, 25, 83–85
fiduciary duties between bondholder and issuer under civil law, 131–132
fiduciary duties between bondholder and issuer under common law, 128–131
fiduciary duties between bondholders and CDS counterparties, 134–135
fiduciary duties within bondholder group, 132–134
as field, 41
formation and institutionalization of, 5, 6, 14–18
formation of thru entanglement of national laws, 16, 24, 25, 34, 41, 42, 43, 47, 53, 56–60, 68, 70, 72, 79, 80, 84, 86, 96–97, 169, 170, 183, 188–189
as global law, 75
as hard law in transnational contexts, 79
historical factors in, 58, 59, 188, 191
horizontal ordering of national legal orders and, 41
hybrid system of, 67
implementation variation in, 5
in civil vs. common law countries, 40, 41, 45–46, 68–69
interaction of East Asian and Western fiduciary norms, 188–189, 209–210
lack of scholarship on transnational dimensions, 74, 97
mechanisms of in East Asian countries, 209–212
modern trust law/norms as, 169, 170, 171–172, 178, 183
national law’s uncertain status in, 53–56
as non-state law, 140
norm development at local level and, 5, 17–19, 21, 24, 28, 29, 30, 55, 67, 150, 157, 158, 159, 160, 169, 178, 208, 215, 216
as process, 96–97
public and private responsibility in, 3, 33
public trust doctrine as transnational norm, 147–152
recursive development of, 5, 6, 18–20, 24, 29, 30, 31, 33, 34, 73, 172, 174, 181, 183, 214, 230
scholarship on, 3
soft law in development of, 16
theoretical framework of, 79
transnational fiduciary duties in state law, 141–143
transnational law defined, 40
as transnational legal ordering of fiduciaries, 79, 86–96
transnational legal orders (TLOs) as framework for, 7–14, 23, 78–79, 86–87, 150, 209, 215
as unsettled concept, 216
vs. comparative law, 40, 41, 43, 46–48
vs. fiduciary law, 78, 93–96
Western transplantation to East Asian countries, 188–199, 209
transnational legal orders (TLOs), 28, 33, 34, 41, 76, 113, 142, 215, See also transnational fiduciary law/norms; unified theory of fiduciary law
access platform regulation as emerging, 33, 279, 282
bond markets as private legal ordering, 125–126, 136–137
conduct-of-business standards as emerging, 104–107
constitutive properties of legal aspects of, 266–267
contract law and, 43, 44
critiques of as not actual law, 32, 136, 264, 267, 268–270, 276
defined, 5, 47, 86, 150, 265
environmental trusteeships as, 162–163
fiduciary activities by financial intermediaries as emerging, 101
as framework for transnational fiduciary law, 7–14, 78–79, 86–87, 150, 209, 215
geographic component of, 54, 68
as governing of fiduciaries, 79, 86–96, 97
institutionalization of, 5, 21, 32, 256
ISO as, 32
law matters hypothesis in, 220
local level legal practices in, 5, 17–19, 21, 24, 28, 29, 30, 55, 67, 150, 183, 222, 225
mandate system of League of Nations as first, 240, 244, 256, 257
micro-TLOs, 33, 152, 161–162, 166
modern trust norms/laws contribution to theory of, 170, 186
movement of norms as normative force, 60
multi-dimensionality of, 19, 29, 34, 169, 183, 230
national law’s uncertain status in, 53–56
normative settlement in, 4, 5, 6, 15, 17, 42, 47, 55, 78, 256
on social problems, 26, 41
private lawmaking and practice and, 26
as providing solutions to problems, 13, 14, 15, 16, 23, 24, 29, 33, 34, 214, 217–218, 221, 280
public trust doctrine and, 147–152
question of legitimate authority of, 264, 267–268, 276, 277
recursive processes in, 5, 6, 15, 18–20, 24, 29, 30, 31, 33, 34, 73, 172, 174, 181, 183, 214, 230
regulatory conduct-of-business standards as emerging, 26, 124
sociolegal conception of, 6, 25, 32, 147, 264, 265, 267, 277
soft law in development of, 26
vs. transnational norms, 166
treaties, 16, See also Hague Trust Convention; Native Americans, fiduciary capitalism against
Treaty on European Union (TEU), 112
Treaty on the Functioning of the European Union (TFEU), 112
Treuepflicht, 46, See also German fiduciary law
Treuhandverhältnisse (relationships of trust, Germany), 24, 61, See also German fiduciary law
trust, 16, 26, 27, See also duty of loyalty; modern trust law/norms; public trust doctrine
digital businesses abuse of individuals’, 23
lawyers as trusted agents and, 243–244
sovereignty and, 31
trust law. See modern trust law/norms
trusteeship. See also guardianship; imperialism in fiduciary law; League of Nations mandate system
critiques of during decolonization era, 259
League of Nations and, 9, 255
transformation of in modern transnational trusts, 178
as transnational norm of European imperialism, 256
U.S. and, 255
Turo, 278
Twitter
as information fiduciary, 23
Uber, 32, 278, 280, 281, 283, 289, See also access platforms
community commitment of, 296
as employer of its drivers argument, 282, 284
as information fiduciary, 284
unified theory of fiduciary law, 4, 5, 12, 14, 67, 107, 212, 214, 222
corporate directors fiduciary duties and, 219
critiques of, 25, 30, 67, 70, 186
as meta-concept, 3, 24
scholarship on, 39
sociolegal viewpoints on, 34
Uniform Commercial Code (U.C.C.), 129
United Kingdom (U.K.) fiduciary law, 46, 69, 94
adoption of in Hong Kong and Singapore, 190, 197–199, 201–203
Burke on trust obligations of imperial officials and, 249–250
corporate directors fiduciary duties and, 219
divergence of corporate directors duties from U.S., 223–224
divergence of corporate law from U.S., 222, 223
duty of care and international court communication, 69–71
duty of care in, 43
duty of loyalty in, 43
East India company and European imperialism, 31, 241, 248–249
history of, 8, 9
horizontal transmission of stewardship codes of, 231–232
imperial theory and accounting practices, 254
legal transplantation of, 220, 222
public companies holdings (1963 to 2020) by shareholder category, 84
public trust doctrine and, 156
regulatory reform for financial services in, 104
transnationalization of corporate governance codes of, 17, 30, 219
on trusts, 174, 180, 181, 183, 184, 185, 186, 187
U.K. stewardship codes, 17, 205, 212, 230, 231–232
vs. East Asian approaches to trust law, 186
United Nations (UN)
Convention on the Law of the Sea (UNCLOS), 161–162
Environmental Rule of Law Global Report (UNEP), 165
Fiduciary Duty for the Twenty-first Century (report), 4, 16, 24, 39, 61
Guiding Principles on Business and Human Rights (2011), 24, 61, 64
Principles for Responsible Investment (PRI), 65
as standards-setter, 42, 61
Trusteeship Council of, 10, 17, 162–163, 258
UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, 159–161
United Nations Environment Programme (UNEP), 39, 61, 153
United States (U.S.) fiduciary law, 39, 46, 94, 104, See also Delaware approach in corporate law
climate change litigation, 165
divergence of corporate directors duties from U.K./Australia, 223–224
divergence of corporate law from U.K., 222, 223
dominance of corporate governance model of in 1990s, 199
duty of care in, 43, 70
duty of loyalty in, 43, 195–196
ESG standards and, 61, 65
extraterritorial effects of, 79, 83–85
fiduciary colonialism against Native Americans and, 243–244, 250–253
influence of duty of loyalty in East Asia, 212
influence of on Japan, 195–197
insider trading laws, 90
lawyers and economic development in 19th century and, 243–244
mutual funds and, 83–85
public trust doctrine in, 155, 157, 160, 164, 165, 166
regulatory conduct-of-business standards in, 108, 109
trusteeship and, 255
U.S. Restatement Third of Trusts, 181, 192
U.S. vs. Japanese corporate governance norms and, 29
U.S.–Japan Structural Impediment Initiative, 197
user privacy, 23, 24
Veleron Holdings, B.V. v. Morgan Stanley, 82–83
Versailles Treaty, 10
vertical legal ordering, 16, 28, 41
beyond the state norms and, 53, 60
of corporate governance codes, 30
of fiduciary law, 42
ESG standards as normative thrust and, 60–66
local level normative settlement and, 30
of modern trust law, 170–171
non-national fiduciary norms and, 41
of transnational body of soft law, 24, 25
treaties as, 16
Vitoria, F. de, 31, 245–247, 249, 255, 256
waterways, public rights to, 146, 154, 156, 158, 253
wealth management centers, 175
increased demand for, 172
offshore vs. onshore operations, 172
Singapore and Hong Kong as, 172, 203
Western fiduciary norms, 29
reception in Japan (19th and early 20th centuries), 191–192
wetlands conservation, 158–159, 166
Whittlesey, E., 243, 244
Wilson, W. (U.S. President), 255
Windstream v. Aurelius, 125–131, 143–145
fiduciary duties between bondholder and issuer in civil law countries and, 131–132
fiduciary duties between bondholder and issuer in common law countries, 128–131
fiduciary duties between bondholders and CDS counterparties, 134–135
fiduciary duties within bondholder group, 132–134
Worcester v. Georgia, 251
World Bank
corporate governance and, 30, 221
World Heritage Convention, 28, 159–161
as micro-TLO, 161–162
Zhang v. DBS, 176–177
Zitkala-Ŝa, 237, 239, 241, 252

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  • Index
  • Edited by Seth Davis, University of California, Berkeley School of Law, Thilo Kuntz, Heinrich-Heine-Universität Düsseldorf, Gregory Shaffer, Georgetown University Law Center, Washington DC
  • Book: Transnational Fiduciary Law
  • Online publication: 22 November 2023
  • Chapter DOI: https://doi.org/10.1017/9781009310321.016
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  • Index
  • Edited by Seth Davis, University of California, Berkeley School of Law, Thilo Kuntz, Heinrich-Heine-Universität Düsseldorf, Gregory Shaffer, Georgetown University Law Center, Washington DC
  • Book: Transnational Fiduciary Law
  • Online publication: 22 November 2023
  • Chapter DOI: https://doi.org/10.1017/9781009310321.016
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  • Index
  • Edited by Seth Davis, University of California, Berkeley School of Law, Thilo Kuntz, Heinrich-Heine-Universität Düsseldorf, Gregory Shaffer, Georgetown University Law Center, Washington DC
  • Book: Transnational Fiduciary Law
  • Online publication: 22 November 2023
  • Chapter DOI: https://doi.org/10.1017/9781009310321.016
Available formats
×