Fiduciary Obligations Research Articles

Reconciling Past Compromises: Towards a More Equitable Future for Orang Asli in Malaysia

In the wake of the COVID-19 pandemic, the present generation has more ability to shape the future than every previous generation in modern times. Intergenerational justice in general means meeting the current needs without jeopardising future generations; all generations are eligible to a healthy, balanced environment favourable to human progress and the State has fiduciary obligation to use and manage resources efficiently and further promotes balance and sound environmental policy. The synergy between its citizen and State create relationship known as “social contract”, but the word “social contract” has a very diverse and unique connotation in Malaysia. The “social contract” referred to the difficulties and intricate compromises reached between major ethnics in Malaysia regarding their mutual rights and privileges, since independence of Malaysia. The Aboriginal in Malaysia is also known as Orang Asli, their communities frequently associated with negative connotation and sometimes less fortunate when compared to other main ethnics in Malaysia. Over the time government regimes change guard but developments of reasonable policies and other actions that promotes intergenerational justice and sustainable development goal towards Orang Asli seem slow in progress. This paper aims to highlight the issues of plight among Orang Asli in Malaysia as they are the minorities within minority communities. In contrast to empirical research, doctrinal approach which is library-based focusing on reading and analysis of the primary and secondary materials will be applied throughout this study. It is the contention of this paper to promote better wellbeing of Orang Asli communities as part of Malaysia nation building.

Should Antimicrobial Resistance Limit Access to an Organ Transplant?

Burkholderia cenocepacia (B cenocepacia) is a gram-negative bacteria associated with significant morbidity and mortality following lung transplantation. Most US transplant programs consider B cenocepacia colonization to be an absolute contraindication to transplantation. This article argues that, if clinicians have good clinical reasons to expect poor outcomes for patients with B cenocepacia, then offering transplantation anyway is an abrogation of clinicians' fiduciary duties. This article also discusses other fiduciary obligations transplant programs might have to patients with B cenocepacia, such as referring to another transplant center, considering novel treatment options, and investigating how the infection's virulence factors stratify that patient's risk for poor transplant outcomes.

Comparative analysis of models of special legal regimes

The author deepens the knowledge about the models of special legal regimes and their historical and philosophical basis. The author highlights the genesis and characteristics of the models of special legal regimes: classical, «state of siege» and «marital law», which are the basis of national legal systems of modern states. The author identifies the common and distinctive features of the «state of siege» of the Romano-Germanic legal family and the «marital law» of the Anglo-Saxon legal family. The author establishes that the models of all special legal regimes are aimed at protecting the public interest and legitimate restriction of human rights and freedoms in emergency circumstances. The author points out that respect for the rule of law and legal procedures is an important characteristic of the «state of siege» which provides for specific constitutional regulation of extraordinary powers of the authorities, while «marital law» is included in the general legal order with enhanced control of the judicial branch. It is proved that a common unifying feature of these regimes is that they all recognize the fiduciary obligations of the State to protect such values as the constitutional order, sovereignty, territorial integrity, life and health of the population, and environmental safety. Both models are characterized by attention to the need to justify and proportionality of human rights restrictions. The author further develops the position that the fiduciary basis of relations between a person and the State when enacting special legal regimes is directly determined by the range of legal guarantees which the State undertakes to introduce and observe both at the international and national levels. At the same time, it is proved that none of the proposed models offers effective and universal measures to ensure human rights in the event of an emergency. The author establishes that the key difference between the «state of siege» and «marital law» models lies in different approaches to the consolidation and implementation of legal guarantees of human rights in the course of special legal order.

История развития теории внутреннего аудита

At present, internal audit has become an integral part of the enterprise management system all over the world. A clear understanding of the underlying causes and dynamics of its emergence and development will help us to properly understand the essence and current trends of internal audit development at enterprises. The aim of the article is to review and analyze the evolution of the concept of internal audit in the West and the development of internal audit in China. The study reveals that internal audit in China originated from administrative regulations, while internal audit in the West originated from the needs of corporate governance. Regardless of whether in China or in the West, the emergence of internal audit in enterprises was mainly related to fiduciary management obligations, and its theory and practice evolved with the development of the concept of fiduciary management obligations.

Renovating Space to Age in Place: Experiences of Elderly Residents Living through Public Housing Renovations and Reflections from Affordable Housing Developers

In this article, we explore the experiences of older adults living in public housing undergoing renovations and its associated impacts on their perceived sense of well-being. We also consider the ways in which affordable housing developers contemplate residents’ health and wellness into renovation plans and processes. Following the conventions of hermeneutic analysis, we conducted open-ended in-depth interviews with older adults living in public housing undergoing renovations (n = 21) and representatives of a variety of affordable housing developers (n = 12). Our analysis demonstrates that residents had strong attachments to their individual living spaces prior to renovations and were fiercely protective of them. Renovations created a sense of unease among older residents as the familiar features of their homes were altered. The processes and the outcomes of renovations and new management strategies raised fears that their lived environments were becoming institutionalized. Developers acknowledged that a tension exists between residents’ desires for personalized private space, and their responsibilities as landlords to prioritize the physical safety of residents and the fiduciary obligations to maintain building longevity.

To Whom Are Directors’ Duties Owed? Evidence from Canadian M&A Transactions

One of the most contentious issues in corporate law is the proper scope of fiduciary duties. Many scholars have argued that fiduciary duties are owed exclusively to shareholders, while others have advocated a broader conception of directors’ fiduciary obligations, potentially encompassing a wide variety of stakeholder and community interests. This debate has both normative and positive dimensions: Not only are there theoretical disagreements as to whom directors’ duties should be owed, there are also more basic disagreements as to what the law actually requires, including the extent to which business norms supplement (or undermine) legal rules. In Canada, at least, jurisprudential and statutory reforms have broadened the scope of fiduciary duties to extend their protections to stakeholder groups including creditors, employees, and the environment.
 Or have they? In reality, there are reasons to believe that legal standards play a limited role in corporate governance, not least with respect to the fundamental question of in whose interests the corporation is to be governed. For public corporations, a variety of factors, including the professional norms of corporate managers, the realities of public financial markets, and the central role of shareholders in the mechanisms of corporate democracy, strongly encourage directors to prioritize shareholder interests. This article finds evidence of this phenomenon through an empirical study of “fiduciary out” provisions in Canadian M&A agreements. These provisions, which allow directors to abandon committed transactions in order to fulfill their fiduciary duties, are almost universally drafted in terms of maximizing shareholder value. Indeed, in two samples containing more than one thousand M&A agreements, only a single agreement permitted directors to consider non-shareholder interests. This evidence indicates that fiduciary duties are broader in theory than in practice.

Cooperative Difference in Insolvency Proceedings

Mountain Equipment Co-operative used insolvency proceedings under the Companies’ Creditors Arrangement Act to sell its business to a private equity firm. A group of members unsuccessfully challenged the sale in court, raising arguments about the court’s power to approve the sale, the fiduciary obligations of the cooperative’s directors and the oppression remedy. This article suggests that the court would have been justified in granting a remedy to the dissenting members if it had attended to how cooperatives differ from standard corporations. This article highlights salient differences between cooperatives and corporations and then analyzes how these differences were relevant to the court’s analysis of its power to approve the sale, the director’s fiduciary obligations, and the oppression remedy. The sale of Mountain Equipment Co-operative underlines the importance of paying careful attention to a debtor’s legal form in insolvency when the debtor is not a standard corporation.

“A Moral, Ethical, and Fiduciary Obligation to Serve”: Perceptions of the Role of Presidents at Hispanic-Serving Community Colleges

ABSTRACT This study utilizes interviews with five Hispanic presidents at Hispanic-serving community colleges in the United States to understand how presidents define and perceive their role in ensuring Hispanic servingness, that is, guaranteeing that the Hispanic population is being fully served, at Hispanic-Serving Institutes (HSIs). We employ Garcia and colleagues’ multidimensional framework of servingness. Past research on HSI leaders has not employed perceptions of presidents on their role to ensure servingness. Four common themes emerged from the data, indicating presidents are concerned about increasing representation, developing training, planning for the future, and exemplifying servingness.

The meaning of “strength executive" in the Constitutional Court decision for the execution of fiduciary securities

Judicial decisions must have legal implications for relevant parties. PMK No. 2/PUU-XIX/2021 remains debatable between creditors and debtors because it seemingly weakens the protection of creditors' rights. Creditors cannot immediately carry out enforcement procedures that cut off the creditor's business flow because the position of the subject of fiduciary obligations is in the debtor's control, making it possible for disputes between debtors and creditors. This normative legal research was conducted using a philosophical, juridical approach covering statutory policies, conceptual and case approaches. PMK No. 2/PUU-XIX/2021 does not regulate creditor legal provisions in enforcing fiduciary securities, making it difficult for creditors to execute them. The Constitutional Court should decide to guarantee justice for all parties and provide a decision with clear content and sentence structure, so multiple interpretations will not occur. The execution of fiduciary securities during the Covid-19 pandemic should not be immediately carried out because the creditor had to follow the predetermined procedures.

Trapping Insider Trading Perpetrators with Misappropriation Theory, Is That Possible?

In Indonesia, insider trading is a crime that the perpetrators do not easily catch. This is sourced from the theory of fiduciary obligations in Article 95 of Law no. 8 of 1995 concerning the Capital Market and restrictions on insider trading. In the United States, using the abuse theory in Sections 10(b) and Sections 10b-5, the Securities and Exchange Act of 1934 can reach anyone, without limitation, which is categorized as an insider trader. The main purpose of this paper is to find new ideas about the existing obstacles to ensnare insider trading actors that have been happening in Indonesia so far. For this reason, the method used is to compare regulations and insider trading cases in the two countries. This study shows that it is time for Indonesia to adopt the theory of misappropriation as an alternative to trapping insider trading actors in the capital market. This urgency is needed to foster investor confidence in the growth and development of the Capital Market in Indonesia.

Sustainable Investing and Fiduciary Obligations in Pension Funds: The Need for Sustainable Regulation

Investment practices can support sustainability efforts or undermine them. As one of the world's largest capital pools, pension funds have a particularly important role to play in sustainable investing practices. In this article, I examine the U.S. requirement that fiduciaries of private‐sector pension plans must maximize financial returns without regard to the negative externalities those investments may create. Other countries, including South Africa, the original leader in sustainable pension investments, take a different approach. I make four major contributions in this article. First, I engage in a thorough literature review and identify the major strands of disagreement on whether U.S. fiduciaries may integrate ESG (environmental, social, and governance) factors into investment decision making. Second, I analyze whether the very different applications of fiduciary obligations (the implementing rules) on ESG investing in the United States and South Africa are attributable to the underlying legal systems. Comparison of common law and civil law shows that the underlying systems do not explain the differences in implementing rules. Third, I trace the source of the U.S. implementing rules to understand the motivations of the U.S. applications, and I do the same for South Africa. I determine that differences in the development of those rules provide the best explanation for their approaches. I conclude that legislative change is needed in the United States to provide stable guidance to U.S. pension plan fiduciaries. I offer a package of suggested reforms that could garner sufficient support for enactment.

The ethical obligations of institutional investors: Managing moral complexity

AbstractInstitutional investors control almost 60% of all assets under management worldwide and encompass a wide variety of organizations. Despite this reach, however, institutional investors have not received the normative scrutiny they merit beyond general discussions around their legally grounded fiduciary obligations to their beneficiaries. This paper offers a discussion of institutional investor ethical obligations in light of their specific attributes. We propose that the different characteristics of institutional investors and the diverse roles they play in the marketplace inform the scope of their activities, and, in turn, the different ways in which their basic ethical obligations can be fulfilled.

Dirty work: well-intentioned mental health workers cannot ameliorate harms in offshore detention

Professional providers of mental health services are motivated to help people, including, or especially, vulnerable people. We analyse the ethical implications of mental health providers accepting employment at detention centres...

The Smart-Obligations in the Digital Environment

The article deals with the provisions of changing the norms of the Civil Code of the Russian Federation in part of new objects of civil rights: investment tokens for shares, digital rights for information technology, derivative financial instruments or their equivalents, obligations. Stochastic smart-obligations as the special part of fiduciary obligation, the issues of liability regarding digital financial assets, digital rights, as new objects of civil rights on the basis of the contract are touched upon, the effectiveness of the application of the model of legal regulation of legal obligations. The author analyzes the new norms of the Federal Law No. 34, as well as legislation in general and practice in terms of determining the legal status of participants in contractual relations. This article introduces especially corporate area and will discuss the implementation of rights on derivatives involving a contract with a forex dealer. It will also consider the possibility of applying the institutions of the refusal to execute the contract, the waiver on such contracts and some other legal relations involving the exercise of rights using technical and electronic means. Additionally, the provisions of the Federal Law No. 259 ‘On digital financial assets’ was analyzed.

The Doctrine of Fiduciary Obligations in Corporate Law Through the Prism of Fiduciary Legal Relations and the Principles of Justice, Conscience, Reasonableness and Loyalty

Topicality. The relevance of the study is due to the lack of a single approach to understanding fiduciary legal relations in civil studies, which prevents the disclosure of the essence of the doctrine of fiduciary duties; insufficient analysis of the concept of "fiduciary duties", which makes it impossible to determine the content of duties arising from the subject of fiduciary legal relations; the lack of clarification of the essence of the doctrine of fiduciary duties, which prevents its full application to the regulation of civil legal relations, the prosecution of persons who have fiduciary duties. The purpose of the article is to reveal the essence of the doctrine of fiduciary duties through the prism of fiduciary legal relations and the principles of civil law, in particular, justice, good faith, reasonableness and loyalty, using the example of corporate law. Research methods. A complex of methods was used in the study of the problem. The theoretical and methodological basis is dialectical, historical and comparative methods, with the help of which the processes of formation, development and application of the doctrine of fiduciary duties in Ukraine and foreign countries were investigated and a complex conceptual and categorical apparatus of this doctrine was developed. Methods of analysis, synthesis, logical generalization, scientific abstraction, and formal-logical methods were used. Using the classification method, groups of fiduciary duties were identified. The method of theoretical generalization made it possible to establish subjects that have fiduciary duties. Results. An analysis of fiduciary legal relations, their relationship with the doctrine of fiduciary duties, the mechanism of functioning of the latter in the Romano-Germanic and Anglo-American legal systems was carried out; special legal methods of interpretation of legal norms, with the help of which the conceptual principles of the functioning and development of the doctrine of fiduciary legal relations, as well as the directions of its practical implementation in judicial practice, are defined; the norms of the current legislation relating to fiduciary duty in corporate law, the application of the doctrine of fiduciary duty in the practice of the Supreme Court were investigated; the components of the doctrine of fiduciary duties are defined: fiduciary legal relations, fiduciary powers, fiduciary duties, principles of justice, good faith, reasonableness and loyalty; the essence of the doctrine of fiduciary duties in corporate law is revealed.

The Social Subcontract: Business Ethics as Democratic Theory

What does democracy demand of business? We argue that an answer to this question requires an understanding of the sorts of ethical obligations businesses have more generally. Against approaches that understand the duties of business in terms of citizenship or fiduciary obligation, we propose and develop the notion of subcontractor duties. We conceive of commercial activity as a social subcontract, in which businesses are empowered to exercise their judgment in pursuit of parochial interests, but for broader social reasons. Such license, however, puts businesses in a position to use this judgment in ways that unduly influence broader political processes. Given this, business ethics should be seen as indispensable for normative democratic theory, as it offers a conception of how business leaders should discharge their discretionary power in a manner least offensive to democratic principles. Drawing on a pragmatist understanding of democracy, we contend that businesses must respect, and avoid undermining, the formal and informal processes that characterize democratic politics. We conclude with rough sketch of what this looks like in practice, listing three broad sets of desiderata that a social subcontract seems to demand of businesses vis-à-vis democracy.

Independent Accountant’s Review Report

Independent Accountant’s Review Report

Implementation Fiduciary Registration According to Finance Ministry, Police, and Financial Services Authority (OJK)

The research aimed to research fiduciary guarantees registration from a legal perspective, especially the executive or administrative regulations. The research examined the existing regulations and laws by analysing primary and secondary data using normative juridical methods. There were three legal material inventory, namely primary legal materials, secondary legal materials, and tertiary legal materials. The research concludes that the fiduciary registration obligations stipulated in the Regulation of Minister of Finance (PMK) Number 130/PMK.010/2012 are not in synchronic with the Financial Services Authority Regulation (POJK) Number 29/POJK.05/2014, which was replaced by the Financial Services Authority Regulation Number 35/POJK.05/2018. Revocation of Regulation of Minister of Finance Number 130/PMK.010/ 2012 by Regulation of the Minister of Finance Number 23/PMK.010/2017 is not accompanied by amendments to the Regulation of the Republic of Indonesia National Police Number 8 of 2011. The loan agreement remains valid if it fulfills the principles of the agreement. It is suggested that relevant institutions, particularly the Financial Services Authority (OJK) as the financial industry supervisor, take initiatives to synchronize all regulations for the implementation of fiduciary registration.

A hard fork in the road: developing an effective regulatory framework for public blockchains

ABSTRACT Over the past decade, public blockchains have emerged as innovative, technology platforms capable of highly secure and sophisticated peer-to-peer online transmission of data between unknown parties. However, public blockchains challenge traditional regulatory models that assume centralised, single points of control facilitated via established intermediaries. In such a context, the present paper analyses the potential liability attaching to blockchain participants and considers how privacy laws apply to blockchain transactions, given the immutable nature of blockchain records. The paper then recommends reforms to strengthen blockchain regulation, including statutory recognition of fiduciary obligations for elite developers with super-user access to allow recourse for loss resulting from hard forks. A ‘hard fork’ is a radical change to a network’s protocol that leads to formerly valid blocks and transactions becoming invalid or vice-versa. Finally, the paper considers changes to privacy laws to permit ongoing consent and cross-border disclosure of data to accommodate blockchain operations.

IMPLEMENTATION OF GOOD CORPORATE GOVERNANCE AND PRUDENTIAL PRINCIPLES (PRUDENTIAL BANKING REGULATIONS) IN BANKING

Banks are required to improve bank health in accordance with the provisions of the aspects of capital adequacy, asset quality, management quality, liquidity, profitability, solvency, and other aspects related to bank business, and are required to conduct business activities in accordance with the principles of prudence. The principle of trust is the main, basic, and most important principle of banking activities. Banks are institutions based on trust by taking advantage of fiduciary obligations from customers to banks in the form of trust in customer data and money from customers. The bank has a function as an intermediary institution that assists in the smooth operation of the payment system, as well as as an institution that becomes a vehicle for Government Policy policies, namely monetary policy. The application of the precautionary principle has a wide scope, not only in relation to the process of providing credit or corporate financing by banking financial institutions as stated in the Banking Act but also all aspects of banking company services. The aim of this research is to know the governance of the bank in order to prevent public doubts about the financial system of the bank.