In recent years, fiduciary law has moved toward the center of scholarly attention in the common law world.1 In spite of its “elusive” nature,2 enough instances of fiduciary relationships occur across a wide variety of legal areas that many – with good cause – describe it as a distinctive field.3 Courts as well as scholars in common law jurisdictions deal concepts and ideas concerning fiduciary law back and forth.4 Although civil law countries have no tradition of the trust as a legal institution,5 courts and scholars alike term relationships based on some kind of personal or professional trust “fiduciary.”6 German law subjects guardians,7 trustees in bankruptcy,8 attorneys,9 and others to a specific set of fiduciary duties, the most important of which is a duty of loyalty.10 France has introduced “la fiducie,” a substitute for the common law trust.11 Indeed, civil law countries have long combined property and contract law in order to fashion substitutes for the common law trust. Contract-based Treuhandverhältnisse – that is, relationships of trust – have been a staple part of the German legal discourse for several decades, if not centuries.12 And in recent years, the trust as a legal institution is gaining ground in civil law jurisdictions, following national recognition of the Hague Trust Convention by countries such as Italy and the Netherlands.13

The chapter focuses on the interaction between European law and national criminal legislation, analysed in the light of the fundamental principles underpinning their relationship, especially the principle of primacy and the duty of loyal cooperation. After distinguishing between direct and indirect effects, paragraph 2 turns to the principle of primacy of EU Law. This cornerstone concept of Union Law affects domestic legislation in so far as it ‘neutralizes’ incompatible domestic criminal law through interpretation and disapplication of inconsistent provisions. This principle develops into a duty of loyalty for Member States (para. 3) which are thus bound to respect and enforce the rules and laws of the EU so as to secure the full and effective implementation of European criminal law in accordance with Art. 4 (3) TEU. Paragraph 4 examines how EU law penetrates the national legal systems of the Member States, focusing on the role of national judges that let European Law enter into the realm of national legal orders. This power represents the most relevant and disruptive manifestation of the ‘internal’ criminal effects of EU law. Selected case law will further demonstrate how EU law applies to and influences domestic criminal legal systems.

Meinhard v. Salmon found a heightened duty of loyalty among joint adventurers: the duty of finest loyalty. Famously, Chief Judge (and later, Associate Justice of the United States Supreme Court) Cardozo wrote that trustees are held to “not honesty alone, but the punctilio of an honor the most sensitive.” Professor Christine Hurt comments on the missing history surrounding the relationship of Meinhard and Salmon and the condition of the United States at the time the underlying transactions took place. Professor Dalia Mitchell, rewriting the Meinhard opinion as Justice Mitchell, reaches the same conclusion but through vulnerability theory and the feminist widening the lens method. In doing so, she considered the history, context, and persons affected by the outcome in a way unique to the rewritten opinion. The original opinion is critiqued for essentially providing the utmost care or no duty whatsoever with nothing in between. Notably, the initial decision only takes the contractual relationship between Meinhard and Salmon into account. Under vulnerability theory, the opinion should consider the overall context of joint adventurers’ relationships to reach more equitable decisions.

Jessica Kiser situates the chapter, explaining that the plaintiff in Donahue was a minority shareholder who sued the company and its directors for breach of fiduciary on account of causing the company to purchase the stock of a former director and controlling shareholder, but refusing to treat her equally by purchasing her shares at the same price. The court held that the company and its directors had breached their fiduciary duty, reasoning that shareholders in a close corporation owe a heightened standard of good faith and loyalty as compared to public companies. Cindy Schipani’s feminist judgment preserves the original opinion’s holding, but expands on the nature of the Donahue’s oppression – not just as a minority shareholder, but as a woman shut out of employment opportunities by virtue of class and gender. Kiser highlights the intersectionality of Schipani’s rewritten opinion.

The WA has several common provisions which set out various obligations as to how the WA (and the Protocol as an integral part of the WA) is to be interpreted and applied. This chapter explores the duty of ‘good faith’ and the duty of ‘sincere co-operation’, which feature in Article 5 WA. This provides, in part, that the EU and the UK ‘shall, in full mutual respect and good faith, assist each other in carrying out tasks which flow from this Agreement’. In addition, Article 5 provides that this obligation of good faith ‘is without prejudice to the application of Union law pursuant to this Agreement, in particular the principle of sincere cooperation’.

This chapter argues that corporate law is unique in a way that is not widely recognized, and is not unique in the way it is widely thought to be. First, unlike other fields of law where fiduciary obligations play a key role, in corporate law, not one, not two, but three distinct actors owe fiduciary duties—executive officers, directors, and controlling shareholders. The beneficiaries of those actors' duties, the reasons for imposing duties, and the scope and demands of fiduciary duties differ for the three actors. Thus, there is not a singular duty of care and loyalty in Delaware corporate law, but multiple variations of those duties owed by multiple actors. Delaware has a law of fiduciaries, not a fiduciary law. Second, this chapter challenges the supposed standard of conduct-standard of review divergence first hailed in 1993 by Professor Melvin Eisenberg as unique to corporate law.The construct was descriptively inaccuratewhen Professor Eisenberg first wrote, it has been little used by the Supreme Court since then, and the standards often converge rather than diverge.

The statutory regime that governs employee benefit plans includes fiduciary provisions that track the obligations of loyalty and care developed in trust law. Relationships among key benefit plan actors, however, never have mapped neatly onto the trust law structure of settlors, trustees, and beneficiaries. In particular, the self-interest of the employers that sponsor benefit plans is in tension with their fiduciary obligations. Changes in the relative importance of some types of benefit plans have caused the tensions to become more acute. To address the relationships among benefit plan actors and the tensions between self-interest and fiduciary obligation, courts have developed implementing rules to adapt the fiduciary standards to the employee benefit plan ecosystem. This chapter compares two implementing rules to identify differences in the ways they function and have adapted to the current plan paradigms.

This chapter, along with Chapters 5 to 6, examines the legal duties that constrain accumulation once a charity has been created. Controller duties (e.g. directors’ duties and trustee duties) are the focus of this chapter. Clearly, duties of loyalty, good faith and of care and diligence can potentially play a restraining role in relation to agency costs, the risk of which can be heightened by accumulation. Further, controller duties also raise the possibility of regulating the retention and distribution of charity assets by controllers, thus affecting the intergenerational distribution of benefits. The chapter provides an overview of the controller duties arising from each of the main legal forms adopted by charities and analyzes the impact of those duties on accumulation. Particular attention is paid to duties arising on the exercise of discretionary powers, such as the duties to act upon genuine consideration and to act impartially. Examples are provided primarily from Australia, the United Kingdom and the United States.

This chapter begins by introducing the concept of corporate governance, and the regulatory role of directors’ duties. An appreciation of corporate governance methodologies gives context to the ‘hard law’ of directors’ duties. The chapter then considers who falls within the definition of director, the role of the director within the company, and how that role attracts legal and non-legal regulation.

This chapter offers a new explanation for mandatory fiduciary protections in certain business relationships—the preservation of trust that might otherwise be eroded through the bargaining process. Any contract a hypothetical entrepreneur and an investor might enter would inevitably be incomplete and give rise to potential opportunistic behavior. While the parties could draft a more detailed agreement prohibiting various forms of opportunism, the very act of bargaining over these protections could undermine whatever trust existed between the parties at the outset of their relationship. By contrast, a prohibition limiting opportunism in state-imposed fiduciary obligations removes the invocation of distrust by either party to the agreement. Fiduciary protections, however, do not provide a perfect solution in all business relationships. Although fiduciary duties can usefully constrain opportunism and preserve trust in vertical business relationships, such as in a simple principal-agent arrangement, other situations involve complexity that pose challenges for fiduciary law. We illustrate this observation with examples of various horizontal conflicts, or diverging interests, in the venture capital-backed startup context. To the extent that contract and fiduciary law are each incomplete, a residual domain for trust and other mechanisms for risk reduction or self help remains.