Fiduciary Duty Research Articles

The Considerations of the Panel of Judges in Rejecting the Business Judgment Rule Principles in Corruption Crime Case Decisions of PT. Asuransi Jiwasraya

The aim of this study is that to examine one of the corruption cases of PT. Asuransi Jiwasraya which focuses on the considerations of the panel of judges in rejecting the principles of the Business Judgment Rule. The method used in this study was a normative legal research method with a statutory approach and a case approach. The result of this study shows that PT. Asuransi Jiwasraya is legally and convincingly proven guilty of committing a criminal act of corruption which is committed by the directors together with the result of the judge's refusal to apply the principles of the Business Judgment Rule. It is shown based on the juridical facts from Decision Number: 32/PID.SUS-TPK/2020/PN.JKT.PST that the substance of the actions of the defendant of the director of PT. Asuransi Jiwasyara cannot be seen to be based on good faith and it is not prioritizing the prudential principle given the fact that the directors actually benefit themselves and not in the interests of the company. Therefore, the directors of PT. Asuransi Jiwasyara can be held personally responsible for failing to conduct the company's fiduciary duties and causing state losses so that the defendant's actions to obtain protection under the Business Judgment Rule should be set aside.

A Comparative Study of Fiduciary Duty Examination Systems in Corporate Decision-Making

In recent years, China has witnessed a surge in corporate governance irregularities both internally and externally. Terms like "financial scandals" have frequently trended, drawing high attention from the general public and causing significant damage to China's financing environment. Even though there are complex regulations in place, there are still speculators who, under the guise of legal decision-making processes, act dishonestly, making it difficult to prevent. Perhaps we should consider introducing a fiduciary duty system and learning from the legal systems of the United States and the United Kingdom to protect the interests of small and minority shareholders. In the state of Delaware, often referred to as the world's corporate capital, a shareholder lawsuit involving "the world's richest person," Elon Musk, and his prideful Tesla company unfolded in the Delaware Chancery Court. It immediately attracted the attention of business owners, investors, and corporate legal scholars from across the United States and the world. Since Tesla officially announced the acquisition of Musk's affiliated enterprise in 2016, SolarCity, founded by his cousins, a protracted legal battle initiated by a substantial group of plaintiffs lasted for over five years, finally coming to an end in early 2022 with Musk's victory. This enduring lawsuit, centered around whether Musk violated his fiduciary duties to minority shareholders under Delaware corporate law, with its lengthy process, complex evidence, and the judge's astute rulings, has provided us with insights into the examination logic and techniques applied by top-tier corporate law regarding fiduciary duties. This holds significant guiding significance for the subsequent amendments and practices of China's Company Law.

CC14 guidance update: greener investments, greater uncertainty?

Abstract This article examines the newly released Charity Commission guidance, known simply as the “CC14”. The CC14 provides investment guidance to the charity sector and has recently been renewed following the case of Butler-Sloss & Ors v The Charity Commission for England and Wales & Anor [2022] EWHC 974 (Ch). In Butler-Sloss, the High Court was asked to determine whether charitable trustees could deploy an investment plan that aligned with the Paris Agreement and excluded investments that contributed to climate change. Mr Michael Green J ruled that such an “ethical” investment plan was lawful. Following Butler-Sloss, the CC14’s use of “social investment” may indeed encourage “greener” investment opportunities amongst charitable trustees, in that the advice attempts to bring charitable trustee investment more in line with modern investment practices. However, this work opines that the guidance could be actively encouraging environmentally inspired investments at the expense of the sacrosanct fiduciary duty of investment.

Relation between financial advisory designations and FINRA misconduct FSR201714

Registered representatives have no general fiduciary duty. CFP, ChFC, and CFA designees have higher ethical duties and education requirements. Registrants’ criminal, regulatory, complaint, and other misconduct history is public. This study examines misconduct disclosures of undesignated versus designated Florida securities salespeople, and finds adverse disclosure materially decreases for designees; it incidentally finds misconduct increases with maleness, dual investment advisor/registered representative status, and life insurance sales licensure. This appears to be the first such study of adverse disclosure association with financial designations, adding to the emerging misconduct and advisors’ ethics literature. These findings offer important policy and consumer choice insight.

Legal Issues Arising from Comcasts Acquisition of DreamWorks and Oriental DreamWorks

Comcast Corporations acquisition of DreamWorks Animation SKG Inc. in 2016 presents a case study of the legal complexities involved in the merger and acquisition legal framework in the United States and China. This paper explores the different aspects of this acquisition, including antitrust regulations, cross-border legal issues, minority shareholder rights, intellectual property management, and post-acquisition integration. Antitrust concerns and foreign regulations, such as Chinas Anti-Monopoly Law, play a significant role in this case which highlights the necessity of compliance with regulatory frameworks to avoid penalties and legal disputes. The importance of protecting minority shareholders' rights in an acquisition is demonstrated by the lawsuit filed by AACERS against DreamWorks CEO Jeffrey Katzenberg. The need for transparency, fairness, and fulfilling fiduciary duties is crucial to mitigate the risk of legal conflicts. This paper also includes the transaction of intellectual property assets. Evaluate the post-acquisition integration procedure, including management restructuring, marketing strategy, and layoffs, with a focus on the necessity of dispute resolution and maintaining compliance with the relevant laws and regulations. Overall, the acquisition of DreamWorks Animation shows some valuable insights and experiences of the legal complexities of an acquisition that involves a cross-border company. Companies can accelerate the acquisition process and integrate smoothly after the acquisition by carefully considering these legal complexities before making the deal.

A Study on Provisions of Fiduciary Duty in Taiwan Trust Law

A Study on Provisions of Fiduciary Duty in Taiwan Trust Law

A Comparison of Learning Methods in Increasing Understanding of Bioethics and Humanities Program (BHP)

The learning method for the Bioethics and Humanities Program (BHP) I at the Faculty of Medicine, University of Pasundan (UNPAS) uses two learning methods, namely Teacher Centered Learning (TCL) and Student Centered Learning (SCL). The two learning methods have the same outcome, namely achieving student competence in understanding BHP 1 courses. Therefore, the most effective learning method is needed to increase student understanding. The purpose of this study was to compare the effectiveness of the TCL and SCL learning methods in BHP courses. The research was conducted on all 3rd semester students of the Faculty of Medicine UNPAS who took part in 2 BHP lecture topics namely Dignity (topic 1) and Fiduciary Duty (topic 2) with a learning model different. After each topic is completed, students carry out a post test. The results showed that there was a difference in the mean post-test scores of the two learning methods where the post-test results were greater in the TCL learning model than in the SCL learning model.

Yes We Can (But Maybe Not Yet): The Impact of Data Poverty on Realising the Potential of Learning Analytics

Learning analytics (LA), as research and practice, has been committed to contributing to understanding students’ learning and the contexts in which their learning occurs since its emergence in 2011. Core to learning analytics is the measurement, collection, analysis and use of student data. As higher education becomes increasingly digitised and datafied, institutions have access to not only more data, but also a variety, velocity and granularity of data. However, there is also increasing evidence of data poverty - referring not only to students’ unable to afford data, but also institutions without, inter alia, the data infrastructure and analytical skills to realise the potential of LA. In both cases, the fiduciary duty of higher education institutions to provide enabling and supportive learning environments are severely compromised. In this conceptual paper, we provide an introduction to the notion of data poverty as it relates to both students and institutions before mapping key dimensions of student data poverty and their implications for LA. We also discuss institutional data poverty before concluding with a number of pointers to move from ‘not yet’ to ‘yes we can’ in providing evidence-led teaching and student support.

Corporate governance at Pinterest: time for more changes?

Research methodology Data for the case came from public sources, including legal proceedings, court filings, company press releases and Securities and Exchange Commission filings. Case overview/synopsis In June 2020, former Pinterest employees made public charges of gender and racial discrimination. Despite changes implemented by the company, several Pinterest shareholders filed derivative lawsuits charging the company with breach of fiduciary duty, waste of corporate assets, abuse of control and violating federal securities laws. The case provides an overview of the company’s management, board and stock structures, as well as information on the shareholders who sued the company and their concerns. The case raises substantial questions about management’s and board member’s responsibilities in corporate governance, illustrates how stock structures can be used to impede governance and suggests ways to evaluate activist shareholders. Complexity academic level This case is appropriate for graduate, advanced undergraduate or executive education courses in strategy, corporate governance or strategic human resources that discuss corporate governance, fiduciary responsibilities, designing workplace culture or management responses to shareholders. Instructors can apply two sets of theories and frameworks to this case: theories of corporate governance and Hirschman’s (1970) exit, voice or loyalty framework in the context of shareholder activism.

Regulation of Group of Companies in Ethiopia: A Comparative Overview

Companies that are organized in a group aim at leveraging the market share, mitigate liability or facilitate long-term management efficiency. The reasons that make group establishment attractive for the parent company can be a basis for concern to other stakeholders, mainly, minority shareholders and creditors of the subsidiary company. The strict application of separate existence of a company and directors’ fiduciary duties towards their companies –applicable in cases of single entity companies– may be difficult in the case of group companies. States, therefore, devise regulatory mechanisms to protect the subsidiary company and its minority shareholders and creditors while at the same time protecting corporate freedom and entrepreneurial reality. Ethiopia has introduced regulatory rules regarding group company (Parent-Subsidiary Company). The objective of this article is to discuss the nature and regulation of Group Company as specified under the new commercial code and in comparison, with other countries’ laws. The article argues that the rules stipulated are not designed to adequately protect the interests of the subsidiary and its stakeholders. It also argues that the liberal interpretation of the provisions governing group companies to include the application of rules governing single company can contribute to potential protection rules missing under the sections in the group company.

Monitoring and responding to signals of suicidal ideation in pragmatic clinical trials: Lessons from the GRACE trial for Chronic Sickle Cell Disease Pain

Sickle cell disease (SCD) is a hemoglobin disorder and the most common genetic disorder that affects 100,000 Americans and millions worldwide. Adults living with SCD have pain so severe that it often requires opioids to keep it in control. Depression is a major global public health concern associated with an increased risk in chronic medical disorders, including in adults living with sickle cell disease (SCD). A strong relationship exists between suicidal ideation, suicide attempts, and depression. Researchers enrolling adults living with SCD in pragmatic clinical trials are obligated to design their methods to deliberately monitor and respond to symptoms related to depression and suicidal ideation. This will offer increased protection for their participants and help clinical investigators meet their fiduciary duties. This article presents a review of this sociotechnical milieu that highlights, analyzes, and offers recommendations to address ethical considerations in the development of protocols, procedures, and monitoring activities related to suicidality in depressed patients in a pragmatic clinical trial.

Sustainable investments: a scientometric review and research agenda

PurposeSustainable investments (SI) represent a promising class of investments, combining financial returns with mitigating environmental challenges, achieving SDG goals and creating a positive business impact. An enhanced global focus on climate change developments in the backdrop of COP26 and COP27, raised the need for comprehensive literature mapping, to understand the emerging themes and future research arenas in this field.Design/methodology/approachThe authors apply a quali–quantitative approach of bibliometric methods coupled with content analysis, to review 1,022 articles obtained from the Web of Science (WoS) database for 1991–2023.FindingsThe results identify the leading authors and their collaborations, impactful journals and pioneering articles in sustainable investment literature. The authors also indicate seven major themes of SI to be financial performance; fiduciary duty; CSR; construction of ESG-based portfolios; sustainability assessment tools and mechanisms; investor behavior; and impact investing. Further, content analysis of literature from 2020 to 2023 highlights emerging research issues to be SDG financing via green bonds and social impact bonds; investor impact creation via shareholder engagement and field building strategies; and governance related determinants of firm-level sustainable investments. Finally, the authors discuss the research gaps across these themes and identify future research questions.Originality/valueThis paper crystallizes research themes in sustainable investment literature using a vast coverage of globally conducted studies published in reputed journals till date. The findings of this study coupled with future research questions provide a well-grounded foundation for new researchers to further explore the emerging dimensions of this field.

Rethinking Directors’ Statutory Fiduciary Duties in the Commonwealth Caribbean: Should Sequana be Followed?

The scope and nature of directors’ duties has been the subject of much judicial and academic debate. In the recent BTI 2014 LLC v. Sequana SA decision, the UK Supreme Court firmly established the creditor duty in English company law. This paper proposes to examine the basis and nature of the duty including its Commonwealth origin. The focal point of this paper is to determine the question of whether such a creditor duty would be accepted as existing by courts in the Commonwealth Caribbean. In providing the answer to that question, this article makes reference to numerous Canadian cases in which the question was answered and many scholarly works which advocate against the creditor duty. Commonwealth, Commonwealth Caribbean, Directors’ Fiduciary Duty, Creditor Duty, BTI 2014 LLC v. Sequana, Companies Act

이사의 배임죄와 경영판단원칙에 관한 연구

Regarding the crime of breach of trust, various controversies have been raised, from conflict over the nature of the crime. In particular, this controversy is further amplified when charges of breach of trust are applied to directors who perform work involving risk. Accordingly, this study examines the breach of trust systems in foreign countries 99and Korea from a comparative legal perspective. Germany, Japan, and France have breach of trust provisions, while the United States punishes breach of duty by mail fraud, and the United Kingdom punishes breach of duty by fraud. When it comes to breach of trust, the broad scope of application or ambiguous requirements are commonly pointed out. This is because the crime of breach of trust emerged to criminally regulate various acts that betray a relationship of trust. And these characteristics of breach of trust pose significant problems in corporate management.
 Corporate directors have a fiduciary duty. However, when determining a director's violation of fiduciary duty, the nature of the business judgment must be taken into consideration in order for the director to actively perform his role. Although there were differences from country to country in the way it was accepted as a legal theory, its effectiveness, and whether it was codified, it was accepted in most legal systems. However, since it is a theory in the field of commercial law, it needs to be cautious when introduced in the criminal system. However, it must be accepted for an unified legal order, and the business judgment rule is applied to breach of trust in Germany and Japan as well. In today's business environment, clear standards for legal responsibility must be presented through business judgment rule for creative business activities of entrepreneurs.

Corporate secretary as subject of fiduciary duties

The article is devoted to the analysis of the legal status of the corporate secretary through the prism of the duties of the latter as a subject of fiduciary duties. It is emphasized that clarifying this issue is important because it depends on: 1) the possibility, and most importantly, the legality of terminating his powers without substantiating the grounds for such dismissal and on grounds not covered by Art. 36 of the Code of Labor Laws of Ukraine; 2) the possibility/impossibility of holding him accountable for actions that go beyond disciplinary, administrative or criminal offences.It is emphasized that, at the legislative level, the fiduciary duties of officials stem from the need to act: 1) in the interests of the company and within the scope of authority; 2) in such a way that, in his good faith belief, will contribute to the achievement of: a) the purpose of the company’s activity; b) successful results of the company’s activities for the benefit of all its shareholders as a whole, for which he must take into account: the possible consequences of his decisions in the long term; interests of company employees.The legal nature of fiduciary duties is analyzed. It is justified that although the corporate secretary is not directly related to the management bodies of the joint-stock company, the nature of his competence determines the special legal position of the corporate secretary. A fiduciary duty exists where one person, the owner, places a special hope or trust in and relies on another person, the fiduciary, while the fiduciary acts in his own discretion using his own experience.The author concludes that the corporate secretary is subject to fiduciary duties, as he implements on behalf of the company the latter’s duty to provide shareholders with information about the company; the corporate secretary is subject to the rules regarding the prohibition of competition (conflict of interests) and is obliged to act in the best interests of the company; is the bearer of the company’s confidential information.

Investing in their best interests: considerations for trustees from the rise of ESG

Abstract The debate about whether a trustee’s fiduciary duties preclude or require consideration of environmental, social and governance (ESG) issues when making investments is rapidly evolving. The orthodox approach, that a trustee must pursue maximum profit to the exclusion of all other considerations, continues to face increasing pressure. A new generation of beneficiaries is increasingly pushing for investment strategies which respond to global pressures and trends (such as climate change-driven extreme weather events, biodiversity loss and inequality). Markets are increasingly taking account of the materiality of ESG considerations to financial value. Trustees following the orthodoxy now find themselves in an increasingly uncomfortable position as these pressures compete with their traditional duties and powers. Today, trustees must be cognisant of and regularly assess ESG issues and be seen to be doing so, failing which they may be exposed to business and reputational—and, increasingly, legal—risk.

Reflecting on the corporate opportunity rule in company law through a jurisprudential review of Modise v Tladi Holdings (Pty) Ltd 2020 4 All SA 670 (SCA)

Directors' fiduciary duties form part of foundational principles in corporate law. This concept has its foundations in the law of agency. Prior to the Companies Act 71 of 2008 (the Companies Act), fiduciary duties were governed under common law, however, the advent of the Companies Act resulted in the partial codification of fiduciary duties. One of the central fiduciary duties is the duty of directors to avoid conflict of interest. This duty restricts the directors of a company from having their personal interests impede those of the company. There are separate rules that flow from the directors' duty to avoid conflict of interests, including the corporate opportunity rule. The corporate opportunity rule dictates that directors must not use their position to unfairly benefit from the contracts and/or information that rightfully belongs to the company they are managing. The objectives of the corporate opportunity rule were clarified in Modise v Tladi Holdings (Pty) Ltd (the Modise case). In partially confirming the judgment of the court a quo the Supreme Court of Appeal held that the ambit of breaching the corporate opportunity rule includes the illegal use of the property and confidential information of the company by a director for personal gain. This article agrees with the reasoning of both the High Court (court a quo or trial court) and the Supreme Court of Appeal in the Modise case on the issue of prescription although the article raises concerns about the decision of the Supreme Court of Appeal on a similar issue. Further, the article concurs with the reasoning of both the court a quo and the Supreme Court of Appeal in concluding that the applicants breached their fiduciary duty when they appropriated a corporate opportunity that belonged to the company. One of the major lessons that could be learnt from the Modise case is that directors, especially those who serve on multiple boards, should exercise extreme caution with potential conflicts of interest.

Revisiting the no reflective loss principle under the South African company law regulation: A reflective assessment through the lens of Hlumisa Investment Holdings RRF) Ltd v Kirkinis 2020 3 All SA 650 (SCA)

One of the central concepts in company law is that a company is a juristic person with a separate legal personality. Several consequences flow from the doctrine of separate legal personality, among other things, that a company owns its property and assets and may sue or be sued in its name. Therefore, shareholders do not have a direct right of action for a company's loss. The company itself should institute such a claim save for certain exceptional circumstances like derivative actions. Both the High Court (court a quo) and the Supreme Court of Appeal in Hlumisa Investment Holdings (RF) Ltd v Kirkinis (the Hlumisa case) confirmed that shareholders cannot claim diminution of share value that is linked to the misconduct of company directors and auditors. This article concurs with the court a quo and the Supreme Court of Appeal's interpretations that as a general rule, directors owe fiduciary duty only to the company and that shareholders cannot rely on a claim for reflective loss in company law. This article assesses the proper plaintiff and reflective loss rules against the backdrop of the Hlumisa case.

Establishing a public option for asset management in the United States

Asset managers – financial institutions like BlackRock, State Street, and Vanguard – manage trillions of dollars of US household financial assets, including public pension funds at the federal, state, and municipal level. The structural power of asset managers means they play a decisive role in corporate decision-making, while the conflicts of interest inherent in their business model and a short-term interpretation of their fiduciary duties means they do not serve the actual interests of their economic beneficiaries in a sustainable economy. I propose establishing a public asset manager in the United States to serve as the asset manager for public pension funds. This article situates this proposed institutional reform in the broader evolution of asset manager capitalism and explains how establishing a public asset manager is an institutional reform that would shift the financial system toward serving the actual interests of the people and social systems on which it depends.

D&O insurance, technology independent directors, and R&D investment

This study examines the effect of technology independent directors on firm R&D investment and investigated the influence and mechanism of directors' and officers' liability insurance11We will use “D&O insurance” for “directors' and officers' liability insurance” throughout the article. on the above effect. We find that technology independent directors positively affect R&D investment, and purchasing D&O insurance can significantly enhance this effect by improving the diligence of technology independent directors. The moderating effect of D&O insurance is more pronounced for private firms and younger technology independent directors. These results suggest that D&O insurance positively motivates independent directors to serve their fiduciary duties and provides new empirical evidence on the governance effects of D&O insurance in emerging markets and independent director groups.