Fiduciary Relationship Research Articles

Perceptions on the Significance of the Clinical Social Workers’ Dress in the Helping Process in Zimbabwe

When dealing with vulnerable populations, the first impression can have far-reaching implications due to socio-cultural dynamics. This has proved true in clinical social work practice where a fiduciary relationship is critical for the restoration of social functioning. The study discovered that service users in Zimbabwe generally have differing opinions regarding how clinical social workers should dress. This was attributed to age, personal preferences, and socio-cultural orientations. Furthermore, service users suggested the prevalence of a perceived connection between dress and the competence of the practitioner. The possibility of service user resistance and inability to build a good rapport if the practitioner's dress is unacceptable to the service user was also noted. The study thus advocates for the need to have social work organizational training on the issue of dress to orient social workers on the sensitivity of dress in practice. By so doing, a social worker will be intentional in their choice of a dress, being cognisant of the fact that their dress is a language that has the potential to either catalyze or hinder the effectiveness of the helping process.

Theory of fiduciary relations within a corporation: the essence and role in corporate law

Theory of fiduciary relations within a corporation: the essence and role in corporate law

Balancing Trade Secrets and Right to Information in Tenders: A Judicial Study

There has existed a long debate regarding the balance of right to information of every individual versus the commercial rights of businesses to protect their proprietary information. While proprietary information and trade secrets have been given protection under the RTI Act, 2005, there exists controversy regarding the protection of trade secrets due to its vague presence in the Indian legal system. Trade secrets does not have any statutory protection in India. The concept has evolvedthrough judicial precedents which has left a huge room for interpretation and confusion regarding the laws surrounding the concept. Trade secrets on the other hand have been recognised as an exception for not revealing information under Right to Information Act, 2005. This article focuses on the matter of tenders in light of right to information and trade secrets. It articulates the courts’ approach on how they view and balance adjudication of trade secret and RTI. The issue arises when in tenders, the information provided in the bids becomes public documents which if made available to competitors can cause irreparable damage to businesses. The article deals with three issues namely, what information has been considered as a trade secret while exempting revelation, how the courts have treated the two parts of a tender i.e. Technical Bid and the Financial Bid and, finally it highlights certain patterns and principles that the courts have uniformly followed while deciding how to consider and allow revelation of such confidential information namely, “Fiduciary Relationship, Public interest, Pre and Post Award of Contract and Vexatious Applications”.While discussing the above issues the courts have further set up some considerations to be taken care of while dealing with each issue which has been discussed at length in this article. Therefore the research questions which the paper addresses are as follows:i. How do courts deal with the issues related to trade secrets and confidential information while issuing information of tenders?ii. What patterns and principles have the courts uniformly followed while deciding how to consider and allow revelation of such confidential information?Finally, the author has given suggestions on how to fill the gaps and overcome practical inefficiencies.

The legal nature of fiduciary duty in civil law of Ukraine

The variety of fiduciary legal relations in the civil law of Ukraine requires the study of their individual elements, in particular, the fiduciary duty. Therefore the purpose of this article is to clarify the legal nature of the fiduciary duty, in order to avoid legal uncertainty, which leads to difficulties in law enforcement and, as a result, ineffective legal protection of violated rights of a person due to non-fulfillment or improper fulfillment of such an obligation in relation to her.Analyzed such concepts as "fides", "fiducia", duty in civil law. It has been established that the first, respectively, in Roman law had several meanings, but the main thing is the trust of the participants in civil relations to each other. The second have to understood as the proper behavior of the subject of civil relations, the content and model of which are determined by the requirements of the rule of law, the will or persons authorized by the transaction or other legal facts.It was found that the fiduciary duty is the proper behavior of the subject of a trust relationship, due to the conclusion of certain agreements (for example, commissions, property management, joint activities, the provision of lawyer services, etc.), or the occurrence of legal facts (election of a body or person of a legal entity, who (who) has the right to act on her behalf, the establishment of guardianship or trusteeship, the death of an individual, etc.).

Re-Examining the Publicity, Advertising and Marketing of Legal Profession in Malaysia

The legal practitioners in Malaysia are restricted from publicising, advertising and marketing themselves on the grounds of fiduciary relationship with clients, the duty to serve the public and it is professionally undignified. Despite the advancement of the Information, Communication and Technology, lawyers are restricted in utilising it for publicity, advertising and marketing. At the same time, the public is deprived of information to engage the best lawyers of their choice. Furthermore, while other countries such as European Union, United Kingdom, Singapore and Australia have moved forward, the Malaysian legal profession remains unchanged. This concept paper investigates the adequacy of the Legal Profession (Publicity) Rules 2001(“LPPR 2001”) in legalising publicity, advertising and marketing. This paper adopts a qualitative research methodology with doctrinal and comparative approaches. Firstly, this paper focuses on content analysis of statutes as the primary source of law. Secondly, content analysis on secondary sources of law including journal articles, and online sources. Thirdly, conducting a comparative study by analysing the primary and secondary sources of law in other jurisdictions. This paper explains that lawyers must be allowed to innovate into new methods in publicising, advertising and marketing themselves. Society will greatly benefit from this as they will be more informed and knowledgeable in engaging the service of lawyers of their choice. This paper ends by suggesting that there is a dire need to legalise the publicity, advertising and marketing of the legal profession in Malaysia. Thus, this research is significant to the development of the legal profession in Malaysia.

General Partnerships and the Fiduciary Duty in the US Legal System

The law of fiduciary duty is as old as common law. It is the key element of the law of equity. The agency relationship creates a fiduciary relationship between the parties, which means that the fiduciary (agent) is subject to the direction of the one on whose behalf he acts (principal). This high standard of conduct – in the scope of the agency relationship – has become a separate liability form in the common law countries and has appeared not only in company law but in other parts of civil law as well. This paper presents the development and the basic elements of fiduciary duty in the field of general partnerships.

Galambos v Perez, its Critics, and the Equity-Certainty Paradox in Fiduciary Law

This paper examines the merits of the current approach to identifying ad hoc fiduciary duties in Canada, which was exposited by the Supreme Court of Canada in its 2009 Galambos v Perez decision. The indicia of fiduciary relationships expressed in Galambos, I argue, are sufficiently comprehensive and certain to overcome popular academic criticisms of the indicia-based ad hoc approach. Specifically, I will challenge the arguments of the contractarian scholar Anthony Duggan and the equity-focused scholar Leonard Rotman -- both of which argue, albeit from different ends of the academic spectrum, that ad hoc fiduciary duties should not be identified using indicia.

Analysis of Governance Diversity and Audit Characteristics on Profitability

This study investigates governance diversity-consisting of female members and national diversity in the board of directors and audit characteristics-consisting of quality and audit tenure on profitability with two proxies, return on assets (ROA) and return on equity (ROE). The investigation uses a stewardship theory to explain the effectiveness of the fiduciary relationship between governance and stakeholders. The regression technique uses panel data with 2.151 data from companies listed on the Indonesia Stock Exchange in 2015-2019. This study demonstrates that audit quality has adverse implications for ROA, while other variables have no effect. It`s findings consistent that female members and audit quality reduce fiduciary relationship-meanwhile national diversity and audit tenure do not have any effect on ROE. This study laid to prove the rating of bad corporate governance and suggests to make disruption in corporate governance characteristics.

Lëhtimaki v Cooper: Duty and Jurisdiction in Charity Law

Lehtimaki v Cooper is a significant Supreme Court decision which establishes that the members of charitable companies are in a fiduciary relationship with respect to the purposes of their organisation. Its core principles have the potential to impact on a very large number of people in the voluntary sector. This note critically assesses the nature and scope of the new fiduciary relationship. In the light of the fact that the majority of new charities are founded as charitable incorporated organisations, the note also criticises the narrow focus on charitable companies taken in the case. Finally, it analyses the expansion in jurisdiction in the decision. The case is notable for bringing companies within the courts’ traditional, and powerful, jurisdiction over trusts.

The Domains of Loyalty: Relationships Between Fiduciary Obligation and Intrinsic Motivation

Many scholars of fiduciary law have focused—understandably—on whether the subject is a coherent field and not a piecemeal of assorted doctrinal detail. This Article looks to the future and to relationships between the formal domain of fiduciary law and other factors that shape conduct. This extra-legal domain includes intrinsic motivation as well as markets for professional services and forces like the operation of reputation. The Article demonstrates that looking across domains—from the legal to the extra-legal—casts in sharp relief the reasons why fiduciary law is distinctive. These stem from the specific qualities of relationships to which fiduciary law applies, as well as the mandatory nature of the distinctively fiduciary duty of loyalty that backstops parties who rely on the trustworthiness of others. The Article also engages with implications to be drawn from extensive behavioral research on intrinsic and extrinsic motivation. The Article argues that fiduciary law can operate to reinforce loyal conduct motivated by extra-legal factors, “crowding in” loyalty, not crowding it out. Elaborating further, the Article uses concrete examples to examine how factors beyond the law that shape conduct likely vary in significance along dimensions of variation among fiduciary relationships.

On Trust: The UN Security Council as Fiduciary

Perceived failures by the UN Security Council have been characterized as a ‘betrayal of trust’, which threatens to impact in turn on the strength of the Council’s authority. In certain legal cultures, fiduciary law has been recognized as an effective legal mechanism to underwrite trust in the exercise of authority. This Article considers the potential value in applying the fiduciary construct to the Security Council setting as a way to consolidate trust. In doing so, it is necessary to unpack two different conceptions of the fiduciary construct: the precept of law (derived from domestic private law) and the precept of authority (sometimes described as public fiduciary theory). Interpreting the former precept as applicable to private interests and the latter to the public interest, this article recognizes both precepts as applicable to relationships in which there is a legal expectation that that those exercising control over another’s interests will not exploit (duty of loyalty) or squander (duty of care) those interests. The central question is whether the UN Security Council can be said to exist in such a fiduciary relationship, either with private persons or with some iteration of the global public. By reference to recent controversies, including privatization of public assets in Kosovo, sexual exploitation and abuse by UN peacekeepers, Security Council vetoes in the face of atrocity and due process failures in sanctions decision-making, this article examines the extent to which the fiduciary construct can play a useful role in reinforcing trust in the Security Council setting.

The Fiduciary Duties of User Agents

User agents are pieces of software that represent the user, a natural person, in their digital interactions. Examples include Web browsers, operating systems, single-sign-on systems, or voice assistants. User agents hold, due to the role they play in the digital ecosystem, a strategic position. They can be arbiters of structural power. The overwhelming majority of the data that is collected about people, particularly that which is collected passively, is collected through user agents, at times with their explicit support or at least by their leave. I propose to lean on this strategic function that user agents hold to develop a regime of fiduciary duties for them that is relatively limited in the number of actors that it affects yet has the means to significantly increase the power of users in their relationships with online platforms. The limited, tractable scope of software user agency as a fiduciary relationship provides effective structural leverage in righting the balance of power between individuals and tech companies.

ЕВОЛЮЦІЯ ВЧЕННЯ ПРО ДОВІРЧІ ВІДНОСИНИ В НЕЗАЛЕЖНІЙ УКРАЇНІ: ВІД ПОВНОГО ЗАПЕРЕЧЕННЯ ДО ВПРОВАДЖЕННЯ У ЧИННЕ ЗАКОНОДАВСТВО

The article addresses the development of the fiduciary relationship doctrine in Ukraine. Primarily, the paper covers the alteration in understanding the idea of trust and other trust-like constructions by Ukrainian society from the 90s of the XX century to present time. The purpose of the article is to highlight the main stages of and approaches to understanding of fiduciary relationship in general and trust and other trust-like constructions in particular, as well as to analyse their common and distinctive features in comparison to related legal institutions and to determine the prospects for their further implementation in Ukrainian law. Methodology. To shed the light on different approaches to understanding trusts and paratrust constructions, a comparative-historical method was used in the article; also the methods of analysis, ascent from abstract to concrete and system-structural methods of scientific cognition were applied. Results and conclusions. Misunderstanding of the idea of a trust has led to violation of the rights of citizens affected by financial fraud of trust companies, which has played a significant role in shaping the distrustful or negative attitude of lawyers and ordinary citizens of Ukraine to trusts and other trust-like constructions for almost two decades. The concept of trust has existed in the law of Ukraine for a long time, but mostly it is associated with the negative issues like hiding property, hiding information about the ultimate beneficial owners etc. In addition, the concept of trust is changing constantly; this indicates the evolution of approaches to understanding the institution. At present, a trust is understood as "legal relationship," while the previous version of law defines a trust through the category of a legal entity. The approach to understanding the concept of beneficial ownership in a trust differs in common law countries and Ukraine. In Ukraine, this definition covers the right of a natural person who, regardless of formal ownership, has the opportunity to exercise decisive influence over the management or economic activity of a legal entity directly or through other persons. Keywords: fiduciary relationship, trust, trust-like (paratrust) constructions, property management, Trust Convention, beneficial ownership, trustee, ultimate beneficial owner, beneficiary, controlled foreign company (CIC), revocable trusts, irrevocable trusts.

Comparative characteristics of trade secret in the legislation of foreign countries and in international law

The purpose of the article is to investigate the place of trade secrets in regulations, international treaties, foreign legislation, and key means of protecting trade secrets in accordance with these regulations. A comparative analysis of current norms and provisions of the system of legislation of foreign countries in terms of protection of trade secrets. An analysis is performed of international treaties and the legal framework of foreign countries, namely, the Paris Convention for the Protection of Industrial Property, the Stockholm Convention establishing the World Intellectual Property Organization of 1967 in terms of protection of trade secrets in order to improve national legislation in this area. It has been emphasized that the definition of trade secrets is similar in the Civil Code of Ukraine and in the TRIPS Agreement, which enshrines three criteria of trade secrets: secrecy, commercial value and taking adequate measures to ensure secrecy. It is noted that legal protection provides for and requires the owner of the commercial secrecy to take appropriate measures to ensure the protection of relevant information from unfair commercial use. Sometimes the misappropriation of a trade secret is the result of industrial espionage, when a person provides classified information to a competitor for monetary or other remuneration. The main provisions of the North American Free Trade Agreement (NAFTA) on trade secrets are analyzed in comparison with the EU legal system, according to which patent law provides additional incentives for the application of the commercial secrecy regime to protect confidential information. Four approaches to understanding this legal regime in the doctrine of Anglo-Saxon legal systems are analyzed: the theory of contractual obligation, the theory of fiduciary (trust) relations, the theory of misappropriation and the theory of unfair competition. It is concluded that the applied criteria for classifying information as a trade secret are similar, in relation to actions that are not appropriation of a trade secret, in particular, in relation to the ‘legalization’ of reverse development, which is relevant for the information technology industry. Ukraine has the prospect of including in its legislation an important legal act – the Law of Ukraine on Trade Secrets, which will have a positive impact on the business climate, promote investment attractiveness, and meet the needs of businesses and the state.

Lehtimäki v Cooper: Duty and Jurisdiction in Charity Law

AbstractLehtimäki v Cooper is a significant Supreme Court decision which establishes that the members of charitable companies are in a fiduciary relationship with respect to the purposes of their organisation. Its core principles have the potential to impact on a very large number of people in the voluntary sector. This note critically assesses the nature and scope of the new fiduciary relationship. In the light of the fact that the majority of new charities are founded as charitable incorporated organisations, the note also criticises the narrow focus on charitable companies taken in the case. Finally, it analyses the expansion in jurisdiction in the decision. The case is notable for bringing companies within the courts’ traditional, and powerful, jurisdiction over trusts.

The covid-19 Infodemic and Online Platforms as Intermediary Fiduciaries under International Law

Reflecting on the covid-19 infodemic, this paper identifies different dimensions of information disorder associated with the pandemic, examines how online platform governance has been evolving in response, and reflects on what the crisis reveals about the relationship between online platforms, international law, and the prospect of regulation. The paper argues that online platforms are intermediary fiduciaries of the international public good, and for this reason regulation should be informed by relevant standards that apply to fiduciary relationships.

Traicionando a la “representación”: O aún no se ha guillotinado al rey. La crítica radical de Deleuze, Guattari y Foucault a la “democracia” jurídico-contractual

The political concept of (indirect) “representation” and the juridical concept of “person” mutually support each other in a reciprocal co-determination. The task that modern philosophers carried out in the philosophical-political field was twofold: while they built a “science of the State”, they built a concept of “subject of law” (or “juridical person”), that is, a very specific mode of production of human subjectivation. Thus, they supported and justified both one mode of social organization (the State) and one mode of production of human subjectivation (the citizen, who became a “free” salaried worker and consumer). The present work aims to investigate the concepts of (indirect) “democracy” and “representation” as they were produced by the modern juridical-contractual conception, especially the one expressed in the more “classical” texts of social and politics philosophy: in them, everything is captured and integrated into a grid of contractual and fiduciary relationships (of power) —whose formula is do ut des (formula of the exchange)—; a grid that reduces the ‘people’ to the status of a formless mass (the “multitude” or “populace”) incapable of direct, active and collective self-government (selfemancipation), and therefore, to a rejection of direct democracy. We will cross this analysis with Foucault, Deleuze and Guattari’s critique of current democracy and the position of representation and dirigisme.

Conflict, Profit, Bias, Misuse of Power: Dimensions of Governance

Norms prohibiting conflicts of interest apply in private fiduciary relationships and also to many public office holders. Whether or not such relationships are founded on trust, such norms can cultivate trust towards those holding governance authority, whether in interpersonal, civic or political relationships. In legal and philosophical discourse, however, conflicts of interest are rarely carefully defined. It has become a commonplace that ‘not every breach of duty by a fiduciary is a breach of fiduciary duty’. We must now go on to realize that ‘not every improper action by one who must avoid conflicts of interest is a conflict of interest’. A conflict of interest arises when duty- bound judgment is exercised in the presence of a conflicting interest. There can be conflicts that are not conflicts of interest; and there can be potential conflicts as well as actual ones. The simple misuse of power is not itself conflict of interest; on the contrary, it is the problem that the rules that forbid acting in a conflict situation aim to avoid. Bias is not identical with conflict of interest, although some kinds of bias arise from conflicts. Unauthorized profits are none of the above. They represent a different dimension of the relationship: not the supervision of powers, but the simple fact that when acting for another, one may not extract benefits for oneself. The rules about conflicts can foster trust in proper decision-making, while the rule against unauthorized profits can foster trust in the proper separation between a person’s private and official actions.

Medical informed choice: understanding the element of time to meet the standard of care for valid informed consent

Medical informed choice is essential for a physician meeting their fiduciary duty when proposing medical and surgical actions, and necessary for a patient to consent or cull the outlined therapeutic...

Same-Day Consent for Regional Anesthesia Clinical Research Trials: It's About Time.

Same-Day Consent for Regional Anesthesia Clinical Research Trials: It's About Time.