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than substantively. In such cases, it would be entirely natural for scholars who lack expertise in law to rely on a folk conception of what it means to be a ‘trustee’ or to otherwise have fiduciary obligations. To draw an analogy, it is fashionable for theorists to illustrate moral puzzles in terms of speeding trams and track-switching mechanisms, but it would be a mistake to suppose that we could therefore get to the bottom of those puzzles by consulting a certain streetcar’s manufacturing specifications. Likewise, so long as the word ‘trust’ is both employed and

principled basis for the courts to develop new specific fiduciary obligations that come to be seen as appropriate in response to changes in social and business norms, and in the general understanding of efficiency and other policy con- siderations that are applicable to corporate law, but cannot be easily accom- modated within the duties of care or loyalty. Table of Contents ECFR 2006, 1–44 I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 II. Overview of the duty of good faith

, “Commercial Notions and Equitable Potions,” 31. Mummery’s argument was that fiduciary obligations in particular can provide an effective supplement to contract law and restore trust to markets. In 1994 Anthony Mason had similarly argued that “[e]quity, by its intervention in commerce, has subjected the participants in commercial transactions, where appropriate, to the higher standards of conduct” Anthony Mason, “The Place of Equity and Equitable Remedies in the Contemporary Common Law World,” Law Quarterly Review 110 (1994): 238–259, 238. and that the ecclesiastical

details the grounding of the relationship between the Crown and aboriginal peo- ples without actually discussing the specifics of either the relationship or its resultant obligations. Nevertheless, judicial considerations of fidu- ciary law within the confines of Native rights have followed Guerin's precedent by similarly imposing fiduciary obligations on the Crown in its dealings with aboriginal peoples without discussing or detailing the specifics of the Crown's duty. What may be gathered from Guerin and subsequent considerations of the Crown-Native relationship

. L. R EV . 671 (2013); Lorne Sossin, Public Fiduciary Obligations, Political Trusts and the Evolving Duty of Reasonableness in Administrative Law , 66 S ASK . L. R EV . 129 (2003). The most extensive work is by Evan Fox-Decent, and in the discussion below I primarily use his work to sketch the outlines of this theory. In Sovereignty ’ s Promise: The State as Fiduciary , F OX -D ECENT , supra note 39. Fox-Decent argues that fiduciary responsibilities “flow … from a particular kind of … factual circumstances that trigger the fiduciary principle.” Id . at 41

owed is also the holder of the company law based claims, and thus, no additional legal remedies are warranted. Responding to this, Heribert Hirte emphasized that his policy statement re- ferred to the trustee rather than the parent company. In particular, he argued in favour of a fiduciary obligation of the parent’s trustee in bankruptcy to monitor the events and transactions on the level of the subsidiary stemming from the trustee’s duty to maximize the assets of the parent. Typically, trans- * Dr., LL.M. (Toronto) actions in the ordinary course of business do not

supplant reliance on independent non-executive directors. I. CONTROLLING DIRECTORS’ CONFLICTS OF INTEREST IN ENGLISH COMPANY LAW THROUGH FIDUCIARY PRINCIPLES: LAW, THEORY, AND PRACTICE Fiduciary obligations are still the central mechanism through which English law controls directors’ conflicts of interest. As will be seen, fiduciary obligations have been supplemented by statute, and by codes of conduct, but those obligations still have a vital, primary role in controlling directors’ conflicts of interest. This central importance of fiduciary obligations emerges very

itself deserted . . . the law does not say that there are to be no cakes and ale, but there are to be no cakes and ale except such as are required for the benefit of the company.8 This passage makes it clear what the Court had in mind about the scope of the fiduciary obligation: while providing employees with benefits to which they are not legally entitled is permissible, it is only permissible if it promotes the business of the company. The case was cited with approval decades later in the 1962 House of Lords case, Parke v. Daily News.9 The Court stated: “In

suffered intolerable cruelties at the hands of their own state.7 Under Grotius’s guardianship theory, states that use force to protect human rights abroad exercise a foreign people’s natural right to resist oppression on their behalf, and they accordingly bear fiduciary obligations to use force solely for the benefit of a foreign people. Unlike Grotius’s theory of international punishment, this guardianship theory resonates with the contemporary practice of humanitarian intervention in important respects; states that invoke humanitarianism as a basis for