Abstract
Fiduciary theory offers a framework for constructing authority, including the limits of its legitimacy and its accountability, without having to rely on either national law theories or representative mechanisms. This chapter explain what fiduciary law is and how it can be applied to the Commission adopting delegated and implementing acts. This chapter also give a first overview over the consequences of finding the Commission to be a fiduciary of the persons subject to its rule-making.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
- 2.
- 3.
Thus, it does not rely on notions such as ‘nation’ or ‘Volk’ as the ultimate constituency and legitimising body. This is not to say that it would not rely on the enforcement mechanism provided by the State. Courts play a very important role in fiduciary law.
- 4.
For the post-national character of the EU, cf Curtin (1997).
- 5.
Cf Dieter (1993) who describes one kind of such a relationship, the friendship (amicitia) and its obligations.
- 6.
Vinter (1938), p. 3 et seq.
- 7.
de Wilde (2011), p. 458.
- 8.
Ibid p. 461.
- 9.
Ibid p. 459.
- 10.
Sealy (1962), p. 69.
- 11.
Sealy (1963), p. 123.
- 12.
Frankel (1983), p. 830.
- 13.
Worthington (1999), p. 500.
- 14.
Stout (2002), p. 677.
- 15.
Smith (2015), p. 130.
- 16.
Birks (2000), p. 3.
- 17.
- 18.
There is no generally applicable word for those subject to a fiduciary’s decision as instead the different forms of fiduciary relationships all use their own terms. I use ‘beneficiary’, which is originally the subject of a trustee’s decision, as such a general term. Cf also Frankel (2012), p. 3, who instead chooses the term ‘entrustors’. I prefer ‘beneficiary’, because it allows better differentiation between the settlor (who would also be an ‘entrustor’) and the beneficiary function.
- 19.
Frankel (1983), p. 817.
- 20.
DeMott (1988), p. 905.
- 21.
Jacobson (1980), p. 635.
- 22.
Simon John Evelyn Boscawen & ors v Narip Deep Singh Bajwa & anr and Abbey National plc v Simon John Evelyn Boscawen & ors [1995] EWCA Civ 15.
- 23.
Paterson v Bowes (1853) 4 Gr 170, also described in Smith (2015).
- 24.
KM v HM (1992) 3 SCR 6.
- 25.
Paterson v Bowes (n 23).
- 26.
Protocol (No 3) on the Statute of the Court of Justice of the European Union (2010) [2010] OJ C83/210 (CJEU Statute) paras 21, 23–29, 32.
- 27.
Consolidated Version of the Treaty on the Functioning of the European Union [2010] OJ C83/47 (TFEU) arts 263, last sentence and CJEU Statute, para 45.
- 28.
These common legal principles form the only source of EU law apart from the Treaties and legislation. They are expressly provided for by Art 340 TFEU, but are used as a source of law more broadly by the Court: cf Fastenrath and Müller-Gerbes (2000), p. 140 et seq. Cf also for the area of administrative law Schwarze (1995), p. 227; Schwarze (1998), p. 191.
- 29.
Constitution of Maryland—November 11, 1776.
- 30.
While Douglas refers to the commentators stating this conviction as “common core” theorists (Douglas 2012, p. 24), he does not present this group as one among many, but rather this appears to be the only group researching the topic.
- 31.
Kötz (1963); Gretton (1998); van Rhee (2000), p. 453; cf further Lupoi (1995), p. 15. See the also the very detailed, although probably outdated, enumeration of the various civil law constructions that can be substituted for trusts specifically. Lepaulle (1927), p. 1126. For a description of some Italian and French ‘fiduciary’ institutions, see Lupoi (1998a); Graziadei (1998); Franciosi (2013), p. 803; Leavy (2007), p. 66; Gvelesiani (2014), p. 269, for an EU wide contribution, see von Bar et al. (2009), chapter X on trusts. (Although for a critical evaluation of the latter as too ‘English’, not taking into account sufficiently existing continental institutions, see Braun (2011), p. 327).
- 32.
Indeed, it appears to be somewhat of a convention in academic literature to refer to the claim that trusts are commonly considered specific to equity, only to proceed to other instances of functionally equivalent institutions in ‘civil law’ countries. Cf Douglas (2012); Gvelesiani (2014); Devaux et al. (2014), p. 91.
- 33.
Hayton et al. (1999).
- 34.
This claim has been mostly made for the area of trust law. There are many ‘historic’ claims, not least of which Maitland’s oft cited claim that his German friend (Gierke) could not understand the trust: Maitland et al. (1969), p. 23. For a more recent contribution, see Goldsmith (1996), p. 5. See also the statement that trusts are a “beacon of English law”: Cumyn (2012), p. 7. Such statements might be connected to the virtual ubiquity of trust and fiduciary constructions in English legal use: ibid p. 10.
- 35.
Examples of differences noted are whether the law of succession makes it possible for a settlor to freely settle all her belongings on those she wishes to or whether there are statutory guarantees of inheritance for certain family members (Goldsmith 1996). This is also mentioned, but without the evaluation, as an argument for incomparability by Lupoi (1998b), p. 24. Another crystallisation point for such differences is the question which rights third parties have against either fiduciary or beneficiary. Cf, for example Huber (1952), p. 65 pointing out the lesser rights of beneficiaries in cases of trustee insolvency under Swiss law compared to UK law.
- 36.
- 37.
Cf, for example, the parallelism between the definition given above and that given in Hofer (1998) (referring to Regelberger (1880)): [das fiduziarische Rechtgeschäft steht under der Vorraussetzung dass] “derjenige welchem dadurch eine gewisse rechtliche Macht geschaffen wird, seine Stellung nur zu einem bestimmten, nicht zu allen dadurch ermöglichten Zwecken ausnützen werde.” Cf also Eichler (1950), p. 7 et seq about the relevance of formal trust relationships in German law.
- 38.
Birks (2000).
- 39.
Richard Hugh Frame v Eleanor Margaret Smith and Johnston Smith (1987) 2 SCR 99.
- 40.
Ibid para 60.
- 41.
Cf Rex v Roberts ex parte Scurr and others (1924) 2 KB 659; Roberts v Hopwood and others [1925] AC 578. In this case, an auditor reprimanded the Poplar City Council because they paid their female employees wages which were comparable to those of the male employees, but thus far above the common wages for women. Atkins LJ accepts the analogies between the fiduciary position and that of public officials: “That trust and confidence are bestowed upon them is true; that they may not use the powers entrusted to them for their own advantage is also true.” Although he also feels the need to point out that public officials should not be treated as trustees in the technical sense:very context Rex v Roberts ex parte Scurr and others (n 41) 726. Instead, Atkins LJ appears to depart from a public law duty of reasonableness which is incidentally similar, but in terms of source independent from, fiduciary duties. The fiduciary analogy is phrased somewhat stronger by Lord Atkinson in the House of Lords: “Towards these latter persons [i.e. person which are not part of the body] the [public] body stands somewhat in the position of trustees or managers of the property of others.” Roberts v Hopwood and others (n 41) p. 596.
- 42.
Prescott v Birmingham Corporation 1953 P. 7398, (1955) 1 Ch 210 and Bromley London Borough Council v Greater London Council and another [1983] AC 768. In the former case, Jenkins LJ held that the local authority was not a trustee, but owed analogous fiduciary duties to their ratepayers: Prescott v Birmingham Corporation (n 42) 235. Unfortunately, this proposition is not further substantiated in that judgment. The case of Bromley v Greater London City Council is probably the most well-known authority for fiduciary duties of public (local) authorities. In this case, the Bromley Borough of London objected to the free or greatly reduced fare for public transport decided by the Greater London City Council and referred to its above-average financial contribution to the Greater London City Council’s budget while at the same time being unlikely to benefit from the policy. The fiduciary duty of the council to ratepayers are “no more than common justice – especially where […] those who provide the greater part of the rates have no vote in local government elections”, Bromley v GLC (n 42) 838 per Lord Scarman.
- 43.
- 44.
For some of the most important cases in this respect, see Guerin v The Queen (1984) 2 SCR 335 in which the Supreme Court of Canada found that the Crown is indeed in a fiduciary relationship with aboriginal peoples because these peoples handed over their interests to the Crown which is now duty bound to protect them, Ronald Edward Sparrow v The Queen (1990) 1 SCR 1075 in which the Supreme Court of Canada found that aboriginal rights exist before and independent of legislation. For an analysis of this series of cases, see Fox-Decent (2011) ch. 2 and 3 and Smith (2015). This relationship differs from other public law relationships in that it has an actual contractual basis which played a role in the finding of the fiduciary relationships. It is an interesting question, whether the relevant provisions in the contract between the Crown and the indigenous groups is context specific or whether this would be a ‘provision’ which would be found in any ‘social contract’ establishing government.
- 45.
A ‘Treugeber’ is the counterpart to a ‘Treuhänder’ in German law. Literally this refers to the person ‘giving in faith/trust’.
- 46.
Löhnig (2006), p. 307 et seq.
- 47.
- 48.
Rheinstein (1948), p. 23.
- 49.
Finn (1994).
- 50.
Finn (1995), p. 131.
- 51.
Silvers and Francis (2005).
- 52.
Fox-Decent (2010), p. 529.
- 53.
Painter (2009).
- 54.
Clark (1996), p. 57.
- 55.
Cf Rave (2013), p. 671 who criticises the way in which in the US bodies of elected representatives can change by majority the district boundaries of the very electoral districts which would cater for (or against) their own re-election.
- 56.
Oliver (2000).
- 57.
Criddle (2006), p. 117.
- 58.
- 59.
One author frames his research as attending to questions of “authority, discretion and legality”, which he then considered with the help of fiduciary and administrative law. Thorburn (2008), p. 1070.
- 60.
- 61.
Leib et al. (2014).
- 62.
Sampford (2012), p. 45. The criticism pertains (1) to trust law’s links to individuality, its blindness to non-human interests (such as the environment), (3) its links to property (which are also visible, for example, in Alec Stone-Sweets approach to public fiduciary law which focuses, to my mind, too strongly on property aspects in his fiduciary perspective on the EU Court: Sweet (2002), p. 77), (4) that trust law focuses on removal of office as remedy for breach of trust and lastly, (5) its tendency to originalism. While I acknowledge that these factors need to be considered carefully when transposing fiduciary law rules to public law, I do not see any insurmountable obstacles in them.
- 63.
For example Cicero (1913) (http://www.perseus.tufts.edu/hopper/text?doc=Perseus:text:2007.01.0047) I(85). Cicero here refers to ‘tutela’, which has been translated as ‘trusteeship’ (Higginbotham 1967, p. 69) or ‘ guardianship’ (Griffin and Atkins 1991, p. 33). The fiduciary construction of tutela is a question which goes beyond the scope that can be devoted to it here. For a discussion, cf Buckland (1912), p. 50 et seq.
- 64.
Fox-Decent (2011).
- 65.
Locke (2010).
- 66.
- 67.
This description is widely cited, and often taken as authoritative (So cited, e.g. in Day 2009, p. 447). Nevertheless it should be noted that this judicial definition is not necessarily taken as the last word on the definition of fiduciaries, which is sometimes still understood as lacking: Cf, for example Conaglen (2005), p. 452. Lord Millett himself, writing extra-judicially, claimed the quote above to be the definition for one (albeit the most common) group of fiduciaries, namely those having explicitly or implicitly consented to their position. Another group defined by their influence need not have consented, and a third group is defined by the possession of confidential information: Millett (1998), p. 219 et seq. Yet it is clear that these groups are in no way mutually exclusive, but that a relationship will often combine more influence with confidential information or with the acceptance of a fiduciary role. Given the considerable overlap between the different groups and the general acceptance of the definition given, I will nevertheless use it here to clarify the concept of fiduciaries in the present context which does not rely on the details of the different fiduciary obligations as defined in case law.
- 68.
Bristol and West Building Society v Mothew (CA) [1998] Ch 1, 18.
- 69.
This description is cited in full above, cf Sect. 3.1.3.
- 70.
Moreover, it is sometimes given expression in ways that go beyond the usually prosaic language of legal judgments, much to the irritation of some academic commentators. See, for example, the description as “hyperbole, if not hogwash” (Penner 2014, p. 175).
- 71.
Frankel (1983); Frankel (1995), p. 1209, Laura Norberg v Morris Wynrib [1992] CanLII (http://canlii.ca/t/1fs90 retrieved on 2015-11-26) per McLachlin J.
- 72.
Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41, p. 69 per Gibbs CJ. Indeed, managers of large pension funds, for example, are undoubtedly in a fiduciary position (cf Edge v Pensions Ombudsman [2000] Ch 602) even though they could not possibly entertain a relationship of personal trust with all those persons signed up for or already receiving a pension from the fund. This group of persons is simply too large.
- 73.
- 74.
Cf also the description by Wilson J. given in Frame v Smith (n 39) para. 60, cited in full above.
- 75.
There is a debate about the extent to which a fiduciary relationship actually needs to be based on altruism. Indeed, since nothing prevents the fiduciary from making its acceptance of the position conditional on personal benefits, ‘altruism’ might not be the right word (DeMott 1992, p. 477 et seq.; Mitchell 1997, p. 472; Birks 2000). At the same time, any self-interested aspect must be very well defined and is usually delimited, whereas the other-regarding aspect is potentially much more open ended. Moreover, the other-regarding, but not the self-interested aspects are necessary for fiduciary relationships (Citibank NA v MBIA Assurance SA [2006] EWHC 3215, commented in Trukhtanov (2007), p. 342). This has brought many writers to focus on this aspect (beside Birks and DeMott, cf for example Worthington (1999); Conaglen (2005); Smith (2014a), p. 608).
- 76.
For this term and an elaboration of the concept of trust, see Sect. 2.5.
- 77.
- 78.
In this latter case, it can be argued that the ‘other’ has become so vague that the duties can better be understood as conditioned by a cause than by ‘another’s behalf’: Cf Brody (2005), p. 644; stating that charitable trustees owe fiduciary duties to the charitable purpose. Generally, fiduciary duties focus much more on the person of the fiduciary than on specifics of this ‘other’. See, for example, Frankel (1983), p. 818 et seq; Frankel (2012), p. 3 and citations therein. Indeed, in the case of charitable trusts, it is commonly held that there are no beneficiaries, but this does not do away with the position of the fiduciary or fiduciary duties. While some public officials can enforce the duties of the fiduciaries, they do not have beneficial rights, but merely aid the enforceability of fiduciary duties. Thevenoz (2014). Fiduciary law moves in an interesting dichotomy between this other-regardingness and operational fiduciary duties directed at the person of the fiduciary.
- 79.
Cf, for example, Norberg v Wynrib (n 71).
- 80.
For an elaboration of the various forms of voluntary commitment and its relevance for the imposition of fiduciary duties, see Edelman (2010a), p. 302; Edelman (2010b); Edelman (2013), p. 128. For a contribution placing Edelman in particular within the literature of fiduciary law and expanding on his argument, see Getzler (2014).
- 81.
- 82.
Millett (1998), p. 219 et seq.
- 83.
Cf Prescott v Birmingham Corporation (n 42); Bromley v GLC (n 42). Fox-Decent maintains that, because fiduciary duties can be imposed by a Court where a person has discretion over another’s interests, the aspect of voluntary undertaking is unnecessary. Cf Fox-Decent (2011), p. 96.
- 84.
Mitchell (2001), p. 599.
- 85.
Securities and Exchange Commission v Chenery Corporation 318 US 80, 85 (1943). This case is relatively well-known in US administrative law (Cf Friendly 1969, p. 199; Kwoka 2013, p. 1060), and it concerns fiduciary duties. Nevertheless, it is not one about public fiduciary law, as the facts under adjudication are whether the Securities and Exchange Commission dealt in the right way with the fact that the directors of the Chenery Corporation are subject to fiduciary obligations, and not the idea that the Securities and Exchange Commission itself could be under fiduciary duties.
- 86.
Bristol and West Building Society v Mothew (CA) (n 68) 18.
- 87.
This position is maintained across jurisdictions and fields of fiduciary law. See, for example Strine et al. (2009) and DeMott (1992, 2006) from US corporate law, Frankel (1995) from US trust law, and Smith (2014a) and Conaglen (2005) from Commonwealth law. This proposition is expressly supported by a number of judgments, setting out the central position of this duty in fiduciary law. The most famous by Lord Millet has already been cited. It is complemented in Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Limited [2007] FCA 963, 289 per Jacobson J. Which other cases should be cited here, depends on the definition of ‘loyalty’ adopted. For example, the judgment in the case of Armitage v Nurse [1998] Ch 241 is often cited in this connection. However, it does not use the term ‘loyalty’, but instead speaks of “the duty of the trustees to perform the trusts honestly and in good faith for the benefit of the beneficiaries”. ibid 253 per Millet J. Yet, this is not to say that the above statement by Lord Millett has not been criticised: see, for example, Penner (2014).
- 88.
Kumpan (2014), p. 49.
- 89.
The New Oxford Dictionary of English (Oxford University Press 1998).
- 90.
Smith (2014a).
- 91.
Samet (2014).
- 92.
Miller (2014).
- 93.
Thus, Paul Finn claims that it is not the status that determines the duties of the fiduciary, but that a person is a fiduciary because she is subject to fiduciary duties. Finn (1989), See also James Edelman, The Role of Status in the Law of Obligations: common callings, implied terms and lessons for fiduciary duties (Paper presented at the University of Alberta, 18 July 2013 and DePaul University conference, Chicago, 19–20 July 2013).
- 94.
Scott and Scott (1995), p. 2401.
- 95.
- 96.
Cf Reading v Attorney General [1951] UKHL 1 which described the fiduciary duties of a soldier vis-á-vis the Crown.
- 97.
- 98.
Cf the notion of the commitments of a ‘historic self’ Fletcher (1993).
- 99.
- 100.
Gold (2014), p. 178.
- 101.
Ibid p. 179.
- 102.
Ibid p. 180.
- 103.
Ibid p. 182.
- 104.
Ibid p. 182.
- 105.
Ibid p. 188.
- 106.
- 107.
Thus, some commentators argue that relationships of public authority are only not to be evaluated as ‘domination’ and undemocratic ‘submission’ under the condition of loyalty: Fox-Decent (2014).
- 108.
- 109.
In the same light, government authority can be seen to properly constitute as much a burden as a power. Natelson (2004), p. 1146.
- 110.
Somek (2008).
- 111.
The concept of ‘encapsulation’ is one forwarded by some proponents of principal-agent theory (see Hardin 1998) and describes the way that the interests of an agent can be made to become congruent to the interests of the principal, by creating an incentive structure where the agent best serves her own interests by serving the principal’s interests. An example of this would be the institution of the bonus for business executives. Through making the remuneration of the executive dependent on the economic success of the firm, this economic success becomes in the interest of the executive, it has become encapsulated in her own interests. While I do not subscribe to many of the tenets of principal-agent theory, ‘rational instrumentalism’ (For a definition of this term, see Fisher 2007) being one, the term ‘encapsulation’ provides a good picture of the dynamics of loyalty.
- 112.
For an elaboration on this point, see above Sect. 2.4.1.
- 113.
A more concrete description of this groups of persons, and also the relation between their interest and the Union interest which is mentioned in the Treaties (Consolidated Version of the Treaty on European Union [2010] OJ C83/13 (TEU) art 17(1)) is the subject of Sect. 4.2 below.
- 114.
Hudson (2010), p. 334.
- 115.
- 116.
Barbalet (1996), p. 75.
- 117.
References
Anghie A (2007) Imperialism, sovereignty and the making of international law. Cambridge University Press, Cambridge
Barbalet JM (1996) Social emotions: confidence, trust and loyalty. Int J Sociol Soc Policy 16(9/10):75
Birks P (2000) The content of fiduciary obligation. Israel Law Rev 34:3
Braun A (2011) Trusts in the draft common frame of reference: the “Best Solution” for Europe? Camb Law J 70(2):327
Brody E (2005) Charity Governance: what’s trust law got to do with it? Chicago-Kent Law Rev 80:641
Buckland WW (1912) Elementary principles of the roman private law. Cambridge University Press, Cambridge, p 50 et seq
Cicero MT (1913) In: Miller W (ed) De Officiis. Harvard University Press, Cambridge
Clark K (1996) Do we have enough ethics in Government yet?: an answer from fiduciary theory. Univ Ill Law Rev (1):57
Conaglen M (2005) The nature and function of fiduciary loyalty. Law Q Rev 121:452
Conaglen M (2013) Fiduciary duties and voluntary undertakings. J Equity 7:105
Crawford JR (2006) The creation of states in international law. Oxford University Press, Oxford
Criddle EJ (2006) Fiduciary foundations of administrative law. UCLA Law Rev 54:117
Cumyn MC (2012) Reflections regarding the diversity of ways in which the trust has been received or adapted in Civil Law Countries. In: Smith L (ed) Re-imagining the trust: trusts in Civil Law. Cambridge University Press, Cambridge, p 7
Curtin D (1997) Postnational democracy. Kluwer Law International, Alphen aan den Rijn
Day M (2009) Fiduciary duties. Trusts Trustees 15(6):447
de Wilde M (2011) Fides publica in Ancient Rome and its reception by Grotius and Locke. Legal Hist Rev 79:455
DeMott D (1988) Beyond metaphor: an analysis of fiduciary obligation. Duke Law J 5:879
DeMott D (1992) Fiduciary obligations under intellectual siege: contemporary challenges to the duty to be loyal. Osgoode Hall Law J 30(2):471
DeMott D (2006) Breach of fiduciary duties: on justifiable expectations of loyalty and their consequences. Ariz Law Rev 48:925
Devaux A, Beckner DA, Ryznar M (2014) The trust as more than a common law creature. Ohio Northern Univ Law Rev 41:91
Dieter N (1993) Mandatum, fides, amicitia. In: Nörr D, Nishimura S (eds) Mandatum und Verwandtes. Springer, Berlin
Douglas J (2012) Trusts and their equivalents in Civil Law systems: why did the French introduce the Fiducie into the Civil Code in 2007? What might its effects be? QUT Law Rev 13(1):19
Edelman J (2010a) When do fiduciary duties arise? Law Q Rev 126:302
Edelman J (2010b) Four fiduciary puzzles. In: Bant E, Harding M (eds) Exploring private law. Cambridge University Press, Cambridge
Edelman J (2013) The importance of the fiduciary undertaking. J Equity 7:128
Eichler H (1950) Die Rechtslehre vom Vertrauen: privatrechtliche Untersuchungen über den Schutz des Vertrauens. Mohr Siebeck, Heidelberg, p 7 et seq
Fastenrath U, Müller-Gerbes M (2000) Europarecht: Grundlagen und Schwerpunkte. Nomos, Baden-Baden, p 140 et seq
Finn P (1989) The fiduciary principle. In: Youdan TG (ed) Equity, fiduciaries and trusts. Carswell, Toronto
Finn P (1994) Public trust and public accountability. Griffiths Law Rev 3(2):224
Finn P (1995) The forgotten “Trust”: the people and the State. In: Cope M (ed) Equity: issues and trends. The Federation Press, Alexandria
Fisher E (2007) Risk regulation and administrative constitutionalism. Hart Publishing, Oxford
Fletcher GP (1993) Loyalty: an essay on the morality of relationships. Oxford University Press, Oxford
Fox-Decent E (2005) The fiduciary nature of state legal authority. Queens Law J 31:259
Fox-Decent E (2010) Democratizing common law constitutionalism. McGill Law J 55:511
Fox-Decent E (2011) Sovereignty’s promise: the state as fiduciary. Oxford University Press, Oxford
Fox-Decent E (2014) Fiduciary authority and the service conception. In: Gold A, Miller P (eds) Philosophical foundations of fiduciary law. Oxford University Press, Oxford
Franciosi LM (2013) Trust and the Italian legal system: why menu matters. J Civil Law Stud 6:803
Frankel T (1983) Fiduciary law. Calif Law Rev 71(3):795
Frankel T (1995) Fiduciary duties as default rules. Oregon Law Rev 74:1209
Frankel T (2012) Towards universal fiduciary principles. Boston University School of Law Working Paper 09/12, Boston, MA, p 3
Friendly H (1969) Chenery revisited: reflections on reversal and remand of administrative orders. Duke Law J (2):199
Getzler J (2014) Ascribing and limiting fiduciary obligations: understanding the operation of consent. In: Gold AS, Miller PB (eds) Philosophical foundations of fiduciary law. Oxford University Press, Oxford
Gold AS (2014) The loyalties of fiduciary law. In: Gold AS, Miller PB (eds) Philosophical foundations of fiduciary law. Oxford University Press, Oxford, p 179
Goldsmith J-C (1996) Trusts in France. Trusts Trustees 2(6):5
Graziadei M (1998) The development of Fiducia in Italian and French Law from the 14th century to the end of the Ancien Regime. In: Helmholz R, Zimmermann R (eds) Itinera Fiduciae: trust and Treuhand in historical perspective. Duncker & Humblot, Berlin
Gretton G (1998) Scotland: the evolution of the trust in a semi-civilian system. In: Helmholz R, Zimmermann R (eds) Itinera Fiduciae: trust and Treuhand in historical perspective. Duncker & Humblot, Berlin
Griffin MT, Atkins EM (1991) Cicero on duties. Cambridge University Press, Cambridge, p 33
Gvelesiani I (2014) Swiss “Fiducie” vis-a-vis French “Fiducie” (Terminological “Coincidences”). Acad J Interdiscip Stud 3(3):269
Hardin R (1998) Trust in Government. In: Braithwaite V, Levi M (eds) Trust & Governance. Russell Sage Foundation, New York
Harding M (2007) Trust and the fiduciary: philosophical foundations of fiduciary law. PhD thesis, Oxford University
Harding M (2013) Trust and fiduciary law. Oxf J Leg Stud 33(1):81
Hayton DJ, Kortmann SCJJ, Verhagen HLE (1999) Principles of European trust law. Kluwer & WEJ Tjeenk Willink, Deventer
Helmholz R, Zimmermann R (1998) Views of trust and Treuhand: an introduction. In: Helmholz R, Zimmermann R (eds) Itinera Fiduciae: trust and Treuhand in historical perspective. Duncker & Humblot, Berlin
Higginbotham J (1967) Cicero on moral obligation. Faber and Faber Ltd, London, p 69
Hirschman AO (1970) Exit, voice and loyalty: responses to decline in firms, organizations and states. Harvard University Press, Cambridge, p 77
Hofer S (1998) Treuhandtheorien in der deutschen Rechtswissenschaft des 19. Jahrhunderts. In: Helmholz R, Zimmermann R (eds) Itinera Fiduciae: trust and Treuhand in historical perspective. Duncker & Humblot, Berlin
Huber E (1952) Trust and “Treuhand” in Swiss Law. Int Comp Law Q 1(1):64
Hudson A (2010) Equity and trusts, 6th edn. Routledge-Cavendish, Abingdon-on-Thames, p 334
Jacobson AR (1980) The private use of public authority: sovereignty and associations in the common law. Buffalo Law Rev 29:599
Johnson L (2003) After Enron: remembering loyalty discourse in corporate law. Del J Corp Law 28:27
Kötz H (1963) Trust und Treuhand: eine rechtsvergleichende Darstellung des anglo-amerikanischen trust and funktionsverwandter Institute des deutschen Rechts. Vandenhoeck & Ruprecht, Göttingen
Kumpan C (2014) Der Interessenskonflikt im deutschen Privatrecht. Mohr Siebeck, Heidelberg, p 49
Kwoka MB (2013) Deference, Chenery and FOIA. Maryland Law Rev 73(4):1060
Leavy J (2007) In France we trust: why the new fiducie institution brings France closer to its Anglo-Saxon Peers. Int Financ Law Rev 26:66
Leib EJ, Ponet DL (2012) Fiduciary representation and deliberative engagement with children. J Polit Philos 20(2):178
Leib EJ, Ponet DL, Serota M (2013) A fiduciary theory of judging. Calif Law Rev 101:699
Leib EJ, Ponet DL, Serota M (2014) Mapping public fiduciary relationships. In: Gold A, Miller P (eds) Philosophical foundations of fiduciary law. Oxford University Press, Oxford
Lepaulle P (1927) Civil law substitutes for trusts. Yale Law J 36(8):1126
Locke J (2010) Second Treatise of Government (first published 1690). Project Gutenberg, Salt Lake City
Löhnig M (2006) Treuhand: Interessenwahrnehmung und Interessenkonflikte. Mohr Siebeck, Heidelberg, p 307 et seq
Lupoi M (1995) The shapeless trust. Trust Trustees 1(3):15
Lupoi M (1998a) Trust and civilian categories (problems spurred by Italian domestic legislation). In: Helmholz R, Zimmermann R (eds) Itinera Fiduciae: trust and Treuhand in historical perspective. Duncker & Humblot, Berlin
Lupoi M (1998b) The domestic trust theory upheld in Italy. Trusts Trustees 4(10):24
Maitland FW et al (1969) Equity: a course of lectures (first published 1936). Cambridge University Press, Cambridge, p 23
Majone G (2001) Two logics of delegation: agency and fiduciary relations in EU Governance. Eur Union Polit 2(1):103
Miller PB (2014) The fiduciary relationship. In: Gold AM, Miller PB (eds) Philosophical foundations of fiduciary law. Oxford University Press, Oxford
Millett PJ (1998) Equity’s place in the law of commerce. 114, Law Q Rev:214
Mitchell LE (1997) The Naked Emperor: a corporate lawyer looks at RUPA’s fiduciary provisions. Wash Lee Law Rev 54:465
Mitchell LE (2001) The importance of being trusted. Boston Univ Law Rev 81:591
Natelson RG (2004) The constitution and the public trust. Buffalo Law Rev 52:1077
Oliver D (2000) Review of (non-statutory) discretion. In: Forsyth CF (ed) Judicial review and the constitution. Hart, Oxford
Painter RW (2009) Getting the Government America deserves: how ethics reform can make a difference. Oxford University Press, Oxford
Penner JE (2014) Is loyalty a virtue, and even if it is, does it really help explain fiduciary liability? In: Gold AS, Miller PB (eds) Philosophical foundations of fiduciary law. Oxford University Press, Oxford, p 175
Purdy J, Fielding K-B (2007) Sovereigns, trustees, guardians: private-law concepts and the limits of legitimate state power. Law Contemp Prob 70(3):165
Rave DT (2013) Politicians as fiduciaries. Harv Law Rev 126(3):671
Rheinstein M (1948) The legal status of occupied Germany. Mich Law Rev 47(1):23
Royce J (1908) The philosophy of loyalty. Macmillan, Basingstoke, pp 16–17
Samet I (2014) Fiduciary Loyalty as Kantian Virtue. In: Gold AS, Miller PB (eds) Philosophical foundations of fiduciary law. Oxford University Press, Oxford
Sampford C (2012) Trust, governance and the good life. In: Coghill K, Sampford C, Smith T (eds) Fiduciary duty and the atmospheric trust. Ashgate, Farnham, p 45
Schwarze J (1995) Towards a common European public law. Eur Public Law 1(2):227
Schwarze J (1998) The convergence of the administrative laws of the EU member states. Eur Public Law 4(2):191
Scott ES, Scott RE (1995) Parents as fiduciaries. Va Law Rev 81:2401
Sealy LS (1962) Fiduciary relations. Camb Law J 69:69
Sealy LS (1963) Fiduciary obligations. Camb Law J 70:119
Shapiro S (2012) The grammar of trust. In: Pixley J (ed) New perspectives on emotion in Finance. Routledge, Abingdon
Silvers A, Francis LP (2005) Justice through trust: disability and the “Outlier Problem” in social contract theory. Ethics 116(1):40
Smith L (2014a) Fiduciary relationships: ensuring the loyal exercise of judgement on behalf of another. Law Q Rev 130:608
Smith L (2014b) Can we be obliged to be selfless? In: Gold AS, Miller PB (eds) Philosophical foundations of fiduciary law. Oxford University Press, Oxford
Smith L (2015) Loyalty and politics: from case law to statute law. J Equity 9:130
Somek A (2008) Individualism. Oxford University Press, Oxford
Sossin L (2003) Public fiduciary obligations, political trusts and the equitable duty of reasonableness in administrative law. Saskatchewan Law Rev 66:129
Stout LA (2002) In praise of procedure: an economic and behavioural defense of Smith v. Van Gorkom and the business judgement rule. Northwest Univ Law Rev 96(2):675
Strine L et al (2009) Loyalty’s core demand: the defining role of good faith in corporation law. Harvard John M Olin Discussion Paper 630, Cambridge, MA
Sweet AS (2002) Constitutional courts and parliamentary democracy. West Eur Polit 25(1):77
Thatcher M, Sweet AS (2002) Theory and practice of delegation to non-majoritarian institutions. West Eur Polit 25(1):1
Thevenoz L (2014) Trusts: the rise of a global legal concept. In: Bussani M, Werro F (eds) European private law: a handbook, vol II. Stämpfli, Berne
Thorburn M (2008) Justification, powers and authority. Yale Law J 117:1070
Trukhtanov A (2007) The irreducible core of trust obligations. Law Q Rev 123:342
van Rhee CH (2000) Trusts, trust-like concepts and Ius Commune. Eur Rev Priv Law 3:453
Vinter E (1938) A treatise on the history and law of fiduciary relationship and resulting trusts. Stevens, Astoria, p 3 et seq
von Bar C, Clive E, Schulte-Nölk H (2009) Principles, definitions and model rules of European private law: draft common frame of reference. Sellier, Munich
Worthington S (1999) Fiduciaries: when is self-denial obligatory? Camb Law J 58(3):500
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 2020 Springer Nature Switzerland AG
About this chapter
Cite this chapter
Tauschinsky, R.E. (2020). Fiduciary Discretion. In: A Fiduciary Approach to Delegated and Implementing Rule-Making in the EU. Springer, Cham. https://doi.org/10.1007/978-3-030-26300-3_3
Download citation
DOI: https://doi.org/10.1007/978-3-030-26300-3_3
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-26299-0
Online ISBN: 978-3-030-26300-3
eBook Packages: Law and CriminologyLaw and Criminology (R0)