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Understanding Fiduciary Duties: Conflict of Interest and Proper Exercise of Judgment in Private Law

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Understanding Fiduciary Duties: Conflict of Interest and Proper Exercise of Judgment in Private Law Understanding Fiduciary Duties: Conflict of Interest and Proper Exercise of Judgment in Private Law Remus D. Valsan Faculty of Law McGill University, Montreal March 2012 A thesis submitted to McGill University in partial fulfilment of the requirements of the degree of Doctor of Civil Law © Remus Valsan, 2012 1 TABLE OF CONTENTS ACKNOWLEDGEMENTS ...................................................................................... 5 SUMMARY ............................................................................................................... 6 RÉSUMÉ ................................................................................................................... 7 CHAPTER I: INTRODUCTION ........................................................................ 8 1.1 ‘Pour encourager les autres’ .................................................................................. 8 1.2 The fiduciary vocabulary ..................................................................................... 12 1.3 Who is a ‘fiduciary’? ............................................................................................ 16 1.4 Dissertation objectives, structure and limitations ................................................ 27 1.4.1 The research question and the proposed approach ................................................ 28 1.4.2 The relevance of the research .................................................................................. 29 1.4.3 The structure of the dissertation ............................................................................. 30 1.4.4 The limitations of the research ................................................................................ 31 CHAPTER II: FIDUCIARY DUTIES IN COMMON LAW .............................. 33 2.1 Introduction ........................................................................................................ 33 2.2 The meaning of ‘fiduciary duties’ ......................................................................... 34 2.2.1 ‘Fiduciary duties’ as a group of proscriptive duties .................................................. 35 2.2.2 ‘Fiduciary duties’ as a group of both proscriptive and prescriptive duties .............. 43 2.2.3 ‘Fiduciary duties’ as a purely contextual concept .................................................... 52 2.2.4 ‘Fiduciary duties’ as the sum of the proscriptive duties and a core duty of loyalty . 56 2.3 The convoluted development of the proscriptive duties ...................................... 58 2.4 The misunderstanding of ‘conflict of interest’: modern examples ........................ 80 2.4.1 Misunderstandings of the ‘duty’ side of the ‘conflict of interest’ in the theoretical approaches to fiduciary law ..................................................................................... 80 2.4.2 Consequence of the misunderstanding of ‘conflict of interest’: the proscriptive duties are unjustifiably strict .................................................................................... 84 2.4.3 Consequence of the misunderstanding of ‘conflict of interest’: the direct aim of the strict proscriptive duties is to deter fiduciary misbehaviour ................................... 97 2.4.4 Consequence of the misunderstanding of ‘conflict of interest’: the direct aim of the strict proscriptive duties is to protect vulnerable beneficiaries ............................. 101 2.4.5 Consequence of the misunderstanding of ‘conflict of interest’: the direct aim of the strict proscriptive duties is to protect valuable social relations ............................. 108 2.4.6 Consequence of the misunderstanding of ‘conflict of interest’: all fiduciary duties are voluntarily undertaken ..................................................................................... 113 2 2.5 Conclusion ........................................................................................................ 116 CHAPTER III: CONFLICT OF INTEREST AND PROPER EXERCISE OF DISCRETION IN THE FRENCH CIVIL LAW ............................................... 120 3.1 Introduction ...................................................................................................... 120 3.2 The theory of fiduciary representation (‘représentation fiduciaire’) ................... 124 3.3 The theory of fiduciary contracts (‘contrats fiduciaires’) .................................... 128 3.4 The systematization of the various instances of conflict of interest .................... 132 3.5 Fraud on power and breach of duty of loyalty by corporate directors ................ 137 3.6 Conclusion ........................................................................................................ 142 CHAPTER IV: CONFLICT OF INTEREST AND THE DUTY TO EXERCISE PROPER JUDGMENT ....................................................................................... 144 4.1 Introduction ...................................................................................................... 144 4.2 Conflict of interest and proper exercise of judgment: a philosophical approach . 149 4.2.1 ‘Conflict of interest’ as term of art in contemporary philosophy .......................... 149 4.2.2 The ‘standard view’ on conflicts of interest ........................................................... 153 4.3 Conflict of interest and proper exercise of judgment: A comparison with administrative law ............................................................................................ 167 4.3.1 Ministerial and discretionary acts .......................................................................... 173 4.3.2 The effects of bias .................................................................................................. 174 4.4 Conflict of interest and proper exercise of judgment in private law .................... 180 4.4.1 The distorting influence of extraneous interests on fiduciary’s exercise of discretion ................................................................................................................................ 184 4.4.2 The duty to exercise discretion based on relevant considerations ........................ 188 4.5 The relevance of the philosophical ‘standard view’ of conflict of interest for private law .................................................................................................................... 194 4.6 Conclusion ........................................................................................................ 197 3 CHAPTER V: SELF-INTEREST AND PROPER EXERCISE OF JUDGMENT: HISTORICAL INSIGHTS.................................................................................. 199 5.1 Introduction ...................................................................................................... 199 5.2 Bonus vir as a standard of proper exercise of judgment in Roman law ............... 200 5.3 Nemo iudex in causa sua ................................................................................... 204 5.4 Auctor in rem suam ........................................................................................... 208 5.5 Error of conscience in moral philosophy ............................................................ 210 5.6 Conclusion ........................................................................................................ 214 CHAPTER VI : CONCLUSION ......................................................................... 216 BIBLIOGRAPHY ............................................................................................... 221 4 ACKNOWLEDGEMENTS I would like to express my deepest gratitude to Professor Lionel Smith for supervising my dissertation and for his continuing support throughout my doctoral journey. He skilfully challenged my thinking on the research topic, while still respecting my own vision and the various directions in which I wanted to take the project. Professor Smith’s advice, insight and comments have been invaluable resources for the development of my research. I would also like to thank my thesis advisory committee: Prof. Daniel Jutras, Prof. Stephen Smith and Prof. Dennis Klinck. Their thought- provoking questions and comments during our annual meetings have influenced significantly the outcome of this research project. I extend a heartfelt thank you to my colleagues at the Quebec Research Centre of Private and Comparative Law, not only for our insightful legal chats, but also for their friendliness and constant encouragement. I acknowledge with much gratitude the financial support provided by McGill University, Professor Lionel Smith, the Quebec Ministry of Economic Development and the Quebec Research Centre of Private and Comparative Law, the Swiss Institute of Comparative Law (Lausanne) and the University Institute of European Studies (Turin). 5 SUMMARY This dissertation analyses the content and justification of the notion of fiduciary duties in private law relations. The thesis promotes the following understanding of fiduciary duties: in a legal relation where one party undertakes to act in the interests of another, and acquires decision-making authority over the other’s interests, such party undertakes a core duty to exercise his best judgment in the other’s interests. The core judgment duty requires a fiduciary to exercise judgment based on relevant considerations. While what constitutes a relevant consideration can be determined objectively, the weight to be ascribed to each relevant factor is left at the fiduciary’s subjective appreciation.
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