Transnational Fiduciary Law

Authors

Tamar Frankel, Boston University School of LawFollow

Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Article

Publication Date

Spring 2020

ISSN

2577-0292

Publisher

University of California, Irvine

Language

en-US

Abstract

Fiduciary law is expanding throughout the world.¹ It seems to be a new phenomenon, but in reality, it is not. Fiduciary law is ancient. It existed centuries ago in Mesopotamia, ² Rome, ³ Egypt,⁴ Greece,⁵ as well as in Jewish ⁶ and Christian laws.⁷ Fiduciary duties arguably developed later in Great Britain when master landlords left for the holy land on religious crusades and had to rely on others to manage their estates.⁸ The ancient rules, such as those found in agency law in Mesopotamia, may not have been as sophisticated as the current ones-such as stewardship codes ⁹ and the consideration of environmental, social, and governance (ESG) factors¹⁰ -for measuring financial performance. But the fundamental problems and solutions in each system have remained the same. These problems continue in the recent global movement, which developed these principles and guides of behavior.

What caused the rise of this global movement? Human nature offers a partial answer. Unlike many types of animals, whose survival depends on the support of other members, cooperation in human societies is generally volitional rather than based on genetics.11 Human beings have sought and found ways not only to live with each other, but also to specialize and to help others as well as themselves. Yet, with these benefits came problems of dependence and unequal power in relationships. Fiduciary law helps resolve such problems and encourages these relationships. When people of different countries and cultures interact, fiduciary law is doubly valuable. It provides a foundation for trust, without which long-term and profitable relationships cannot exist.

Part one of this article describes the main problems found in fiduciary relationships-that is, the types of problems fiduciary law is designed to solve. Part two offers a short description of globalization: the rising interaction among people in different parts of the globe. Part three discusses the current growth of problems involving fiduciary relationships in the global context. Part four describes the difficulties of integrating fiduciary law into different legal systems and different cultures, and part five focuses on the ways in which fiduciary rules could more easily be applied to fiduciaries and their relationships with others.

This Article concludes with a prediction that fiduciary principles and their enforcement will likely regulate a significant part of international relationships. This prediction, however, is a hopeful one. Hopefully, the restrictions on powerful fiduciaries will not be excessive and the benefits of their self-limitations will enrich all parties in societies around the globe.

Recommended Citation

Tamar Frankel, Transnational Fiduciary Law , in 5 UC Irvine Journal of International, Transnational, and Comparative Law 15 (2020).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2989