This dissertation examines whether the lack of ready access by trustees to a codified set of their fiduciary duties is contributing to poor governance of trusts and whether setting out these duties in the Trust Property Control Act would promote good governance. Chapter 1 considers whether corporate law reform is an appropriate basis for comparison when considering the codification of trustees’ fiduciary duties. It suggests that corporate law is a useful comparator because it has well-developed law in relation to fiduciary duties, which has also shaped trust law. Twenty plus years after the Trust Property Control Act was enacted, South Africa’s socio-economic environment has changed dramatically and trusts are today used extensively and for many purposes. Trust law needs to keep pace with this change, as well as current thinking on good governance. It also needs to better serve today’s vast number of trustees of varying skill and experience. The dissertation asks what lessons can be learned from considering the partial codification of directors’ fiduciary duties in the Companies Act 2008 and whether the proposed codification will advance governance of trusts and benefit beneficiaries in fundamental ways. It uses primary and secondary sources and comparative research in considering the approach to codification of fiduciary duties in New Zealand, Australia and England. The newly enacted New Zealand Trusts Act 38 of 2019 is particularly relevant and timely. Chapter 2 examines the theory of and rationale for codification, and the arguments of its opponents, generally, as well as specifically in relation to the Companies Act 2008. It also considers the influence of King IV. Chapter 3 examines fiduciary duties identified in trust cases with a view to formulating a body of core duties incorporated into the partial codification proposed in the subsequent chapter. These amendments are suggested as part of a multi-pronged approach to improved governance in trust law. The final chapter concludes that although the partial codification of directors’ fiduciary duties in the Companies Act offers, in principal, useful guidance, it cannot serve as a template for amendments to the Trust Property Control Act. By contrast, the legislative action proposed in chapter 4 is consistent with international trends in governance and should advance the cause of good governance in trust law. / Mini Dissertation (LLM)--University of Pretoria, 2019. / Private Law / LLM / Unrestricted

Gold mining communities in Ghana have experienced destruction of vegetation, water pollution, and soil contamination by activities of mining due to rapid growth and dependency on mining of natural resources within the catchment areas of the mining activities. These circumstances with repercussions of corruption and inefficient management of corporate social responsibility places organizational goals above the community and the nation. These setbacks necessitate the successful practice of corporate social responsibility to benefit stakeholders within mining communities. The purpose of this study was to investigate the relationships between corporate social responsibility, environmental policies, and community complaints, and the fiduciary responsibility to stakeholders. The research questions addressed whether a relationship existed between corporate social responsibility, environmental impact, community complaints, and the fiduciary responsibility to shareholders within gold mining companies in Ghana. Social exchange theory was the theoretical base of this quantitative correlational study, which included point-biserial and Spearman correlations to examine archival data from 10 active gold mining companies in Ghana. Results indicated a significant inverse relationship between community complaints and fiduciary responsibility, meaning that companies with positive report of community complaints tend to have lower fiduciary responsibility. Findings may inform policymakers, regulatory agencies, and mining organizations regarding the fiduciary effects of corporate social responsibility in the Ghanaian mining industry, and thereby influence positive business practices, living standards, and quality of life of Ghanaian citizens.

Fiduciary Duty is the legal obligation that economic agents must act in the best interests of their beneficiaries, however the legal definition is vague. There are two general categories of ways of interpreting Fiduciary Duty. The dominant, so-called narrow interpretation binds an economic fiduciary to act in the best financial interests of their beneficiaries. There are also broader interpretations which attempt to account for the welfare and/or ethical priorities of the beneficiaries. The narrow interpretation favors the sole prioritization of profit motivation while the broad interpretations favor environmental and social considerations above profit. The historical legal favor enjoyed by the narrow view seems to, at least in part, allow and even encourage the unsustainable exploitation of natural and social resources. On the other hand, favoring broad interpretations seems to undermine the pecuniary interest inherent in the act of investment. In this paper, I will formulate an alternative account of fiduciary duty by analyzing the underlying ethical desiderata put forward by both categories of interpretations and suggesting a synthesis of the views considered. Using John Stuart Mill's Harm Principle, I outline where sufficient conditions are met in investment decisions to make profit motivation a secondary consideration. While the primary ethical framework I will adopt is most influenced by Rawls' contractarianism, I will support my view by showing that my account of fiduciary duty is favorable on several ethical perspectives over existing broad and narrow interpretations, namely deontological, utilitarian, and consequentialist points of view. My conclusion suggests a few possible actions for the goals of future legislation surrounding the economic agent's relationship to their beneficiaries. One, that environmental and social considerations by economic agents are both prudent and loyal to their beneficiaries, meeting the criteria outlined in fiduciary duty. Therefore, taking such considerations in business decisions should not be punishable as it currently is in many jurisdictions. Second, regulations should be proposed that either: A. Restricts investments enabling economic agents that are prone to environmental and social abuses, or B. Makes the beneficiary explicitly aware of the agent’s questionable business practices before they make the decision to invest. My proposed revision of fiduciary duty therefore aims to provide a philosophical framework for current market regulators to respond to environmental and social challenges facing our planet that are posed by economic agents.

O objetivo primordial da presente dissertação é estudar o instituto da cessão fiduciária de créditos e de títulos de crédito, previsto no artigo 66-B da Lei nº 4.728, de 14 de julho de 1965, com a redação dada pela Lei nº 10.931, de 02 de agosto de.2004, e popularmente conhecida como trava bancária, com vistas a identificar as posições da doutrina e jurisprudência quanto ao seu tratamento nas hipóteses de recuperação judicial e falência do devedor-fiduciante. Isto porque, o parágrafo 3º do artigo 49 da Lei nº 11.101, de 09 de fevereiro de 2005 (Lei de Recuperação de Empresas LRE) exclui dos efeitos da recuperação judicial os proprietários fiduciários de bens móveis e imóveis. A maior parte da doutrina e da jurisprudência defende que os titulares de créditos cedidos fiduciariamente estão compreendidos na definição de proprietário fiduciário de bem móvel prevista no referido parágrafo 3º do artigo 49 da LRE e, portanto, estão excluídos dos efeitos da recuperação judicial do devedor-fiduciante. Por outro lado, parte minoritária da doutrina e da jurisprudência defende que o parágrafo 3º do artigo 49 da LRE não menciona expressamente os titulares de crédito cedidos fiduciariamente e, sendo o referido parágrafo exceção à regra de que todos os credores estão sujeitos à recuperação judicial do devedor, sua redação deveria ser interpretada restritivamente, razão pela qual os credores titulares de créditos cedidos fiduciariamente estão sujeitos à recuperação judicial do devedor-fiduciante. A divergência da doutrina e da jurisprudência sobre o tema acaba por acarretar insegurança jurídica quanto ao uso da cessão fiduciária como forma de garantia. De um lado, as instituições financeiras têm dúvidas sobre a real segurança de tal garantia, o que pode comprometer uma eficiente avaliação de risco de crédito, assim como a recuperação do crédito na hipótese de insolvência do devedor. Por outro lado, as empresas em crise têm dúvidas sobre a viabilidade de sua efetiva recuperação, principalmente quando seus maiores credores forem bancos. Por todos esses motivos, entendemos ser de suma importância um estudo aprofundado do referido instituto, bem como uma análise crítica da solução adotada pelo legislador em face dos princípios de preservação da empresa em crise trazidos pela LRE. / The main purpose of this dissertation is to examine the fiduciary assignment of rights on movable assets and of credit instruments, as contemplated in article 66-B of Law No. 4,728, of July 14, 1965, as amended by Law No. 10,931, of August 2, 2004 widely known as bank lock (trava bancária) with a view to identifying the standing of legal scholars and court precedents and their approach in the event of debtors judicial restructuring and/or bankruptcy. This is because the 3rd paragraph of article 49 of Law No. 11,101 of February 9, 2005 (Judicial Restructuring Law LRE) determines that the fiduciary owners of movable and immovable assets are no longer subject to the effects of their debtors judicial restructuring. Most legal scholars and court precedents sustain that holders of credits assigned on a fiduciary basis fall under the category of fiduciary owner of movable assets, as established by such 3rd paragraph of article 49 of LRE and, therefore, are not subject to the debtors judicial restructuring. On the other hand, a small number of legal scholars and court precedents sustain that the 3rd paragraph of article 49 of LRE contains no express reference to holders of credits assigned on a fiduciary basis and, given that such paragraph is an exception to the general rule that all creditors are subject to the debtors judicial restructuring, its wording ought to be construed restrictively, for which reason such holders of the credits assigned on a fiduciary basis would be subject to the debtors judicial restructuring. Diverging views among legal scholars and court precedents on the matter bring about legal uncertainty as to the use of the fiduciary assignment of credits as a form of security. Financial institutions, on the one hand, are skeptical about the actual effectiveness of such form of security and that alone might impair the efficient assessment of the credit risk and the recovery of credits in the event of the debtors insolvency. On the other hand, companies undergoing financial crisis question the feasibility of an effective restructuring, particularly if their major creditors are banks. For all those reasons, it is important to look into the fiduciary assignment of credits and critically analyze the solution adopted by the lawmakers vis-à-vis the principles of preserving companies in crises as introduced by the LRE.

O objetivo primordial da presente dissertação é estudar o instituto da cessão fiduciária de créditos e de títulos de crédito, previsto no artigo 66-B da Lei nº 4.728, de 14 de julho de 1965, com a redação dada pela Lei nº 10.931, de 02 de agosto de.2004, e popularmente conhecida como trava bancária, com vistas a identificar as posições da doutrina e jurisprudência quanto ao seu tratamento nas hipóteses de recuperação judicial e falência do devedor-fiduciante. Isto porque, o parágrafo 3º do artigo 49 da Lei nº 11.101, de 09 de fevereiro de 2005 (Lei de Recuperação de Empresas LRE) exclui dos efeitos da recuperação judicial os proprietários fiduciários de bens móveis e imóveis. A maior parte da doutrina e da jurisprudência defende que os titulares de créditos cedidos fiduciariamente estão compreendidos na definição de proprietário fiduciário de bem móvel prevista no referido parágrafo 3º do artigo 49 da LRE e, portanto, estão excluídos dos efeitos da recuperação judicial do devedor-fiduciante. Por outro lado, parte minoritária da doutrina e da jurisprudência defende que o parágrafo 3º do artigo 49 da LRE não menciona expressamente os titulares de crédito cedidos fiduciariamente e, sendo o referido parágrafo exceção à regra de que todos os credores estão sujeitos à recuperação judicial do devedor, sua redação deveria ser interpretada restritivamente, razão pela qual os credores titulares de créditos cedidos fiduciariamente estão sujeitos à recuperação judicial do devedor-fiduciante. A divergência da doutrina e da jurisprudência sobre o tema acaba por acarretar insegurança jurídica quanto ao uso da cessão fiduciária como forma de garantia. De um lado, as instituições financeiras têm dúvidas sobre a real segurança de tal garantia, o que pode comprometer uma eficiente avaliação de risco de crédito, assim como a recuperação do crédito na hipótese de insolvência do devedor. Por outro lado, as empresas em crise têm dúvidas sobre a viabilidade de sua efetiva recuperação, principalmente quando seus maiores credores forem bancos. Por todos esses motivos, entendemos ser de suma importância um estudo aprofundado do referido instituto, bem como uma análise crítica da solução adotada pelo legislador em face dos princípios de preservação da empresa em crise trazidos pela LRE. / The main purpose of this dissertation is to examine the fiduciary assignment of rights on movable assets and of credit instruments, as contemplated in article 66-B of Law No. 4,728, of July 14, 1965, as amended by Law No. 10,931, of August 2, 2004 widely known as bank lock (trava bancária) with a view to identifying the standing of legal scholars and court precedents and their approach in the event of debtors judicial restructuring and/or bankruptcy. This is because the 3rd paragraph of article 49 of Law No. 11,101 of February 9, 2005 (Judicial Restructuring Law LRE) determines that the fiduciary owners of movable and immovable assets are no longer subject to the effects of their debtors judicial restructuring. Most legal scholars and court precedents sustain that holders of credits assigned on a fiduciary basis fall under the category of fiduciary owner of movable assets, as established by such 3rd paragraph of article 49 of LRE and, therefore, are not subject to the debtors judicial restructuring. On the other hand, a small number of legal scholars and court precedents sustain that the 3rd paragraph of article 49 of LRE contains no express reference to holders of credits assigned on a fiduciary basis and, given that such paragraph is an exception to the general rule that all creditors are subject to the debtors judicial restructuring, its wording ought to be construed restrictively, for which reason such holders of the credits assigned on a fiduciary basis would be subject to the debtors judicial restructuring. Diverging views among legal scholars and court precedents on the matter bring about legal uncertainty as to the use of the fiduciary assignment of credits as a form of security. Financial institutions, on the one hand, are skeptical about the actual effectiveness of such form of security and that alone might impair the efficient assessment of the credit risk and the recovery of credits in the event of the debtors insolvency. On the other hand, companies undergoing financial crisis question the feasibility of an effective restructuring, particularly if their major creditors are banks. For all those reasons, it is important to look into the fiduciary assignment of credits and critically analyze the solution adopted by the lawmakers vis-à-vis the principles of preserving companies in crises as introduced by the LRE.

The rule in Re Hastings-Bass is an equitable control on the exercise of powers by trustees. It has developed without satisfactory explanation of its doctrinal basis, resulting in uncertainty as to its scope and application. In Pitt v Holt [2011] EWCA Civ 197 the Court of Appeal began to remedy these defects by deciding that the rule is founded on a trustee’s duty properly to consider the exercise of a power. This thesis argues, first, that Pitt is right to understand the Re Hastings-Bass rule as premised on the duties of trustees, and not on the exercise of a power producing an unintended result. This accords with the reasoning of earlier cases on the rule, and is also consistent with House of Lords authority on fiduciary powers and judicial non-interference in trustees’ decision-making. This duty is not a ‘fiduciary’ duty, or an aspect of the trustee’s duty of care, but is an independent incident of the office of trustee. Secondly, this analysis of the Re Hastings-Bass rule facilitates exposition of its important features: the concept of ‘relevant consideration’ must be carefully circumscribed; the purported exercise of a power in breach of the rule is voidable, not void; the rule does not apply to purely personal powers, or to administrative powers; there are no special rules for pension trusts or the use of the rule to mitigate liability to taxation; trustees can usually avoid a breach of duty by taking professional advice; and in some circumstances, those professional advisers can incur liability to the trust beneficiaries. Finally, the relationship between the Re Hastings-Bass rule and fraud on a power is examined. It is argued that the analogy between the two doctrines is not sound, and that there is reason to doubt aspects of the orthodox account of fraud on a power.

La réflexion juridique relative aux opportunités d’affaires est traditionnellement cantonnée au domaine qui a vu leur émergence : le droit des relations fiduciaires. Dans ce cadre, une opportunités d'affaires est traditionnellement regardée comme une chance captée par le dirigeant social. Mais n’est-il pas souhaitable de donner à la notion d’opportunité d’affaires une dimension plus large ? Une opportunité d’affaires est en effet une occasion de s’engager dans une opération ou une activité. En tant que chance économique, une opportunité d’affaires émerge sur le marché. À quelle condition, néanmoins, une occasion de contracter peut-elle être jugée opportune par celui qui s’apprête à la saisir ? Toute opportunité est-elle, par ailleurs, librement saisissable ? Quel est, autrement dit, le traitement juridique des opportunités d’affaires ? Identifier une opportunité d’affaires consiste à déterminer si une opération ou une activité est ou non opportune pour celui qui est appelé à la saisir. En toute hypothèse, le droit contrôle les moyens de l’identification d’une opportunité d’affaires, l’identification d’une opportunité d’affaires ne doit pas être l’occasion de tous les excès. Le traitement juridique des opportunités d’affaires est double. Au terme de sa fonction traditionnelle d’interdiction, le droit dissuade la captation d’une opportunité d’affaires. Mais embrassant désormais une perspective complémentaire de celle qui est classiquement la sienne, le droit reçoit pour mission d’inciter à saisir des opportunités d’affaires. Le sens de l’étude est ainsi de révéler l’appréhension, bien plus large qu’il n’y paraît, des opportunités d’affaires par le droit privé / Legal thinking about business opportunities is traditionally confined to the field that has emerged: the law of fiduciary relationships. In this context, a business opportunity is traditionally viewed as a chance captured by the social leader. But is it not desirable to give the notion of business opportunity a broader dimension? A business opportunity is indeed an opportunity to engage in an operation or activity. As an economic opportunity, a business opportunity emerges on the market. On what condition, however, can an opportunity to contract be considered opportune by the person who is about to seize it? Is every opportunity, moreover, freely seizable? What is, in other words, the legal treatment of business opportunities? Identifying a business opportunity is to determine whether or not an operation or activity is appropriate for the person who is called upon to seize it. In any case, the law controls the means of identifying a business opportunity, the identification of a business opportunity should not be an opportunity for all excesses. The legal treatment of business opportunities is twofold. At the end of its traditional interdiction function, the law discourages the capture of a business opportunity. But now embracing a perspective complementary to that which is classically his own, the law's mission is to encourage the seizure of business opportunities. The meaning of the study is thus to reveal the apprehension, much wider than it seems, of business opportunities by private law

This paper argues that “enlightened shareholder value” (“ESV”) offers a “third way” between the shareholder primacy and stakeholder theories of the corporation; one that maintains the creation of shareholder value as the corporation’s primary function, but requires directors to take into account the environmental impact of the corporations’ operations. ESV requires directors to “have regard to”, among other things, “the impact of the company’s operations on…the environment.” The obligation to “have regard to” should be interpreted as a procedural duty requiring directors to inform themselves as to the environmental impact of the corporation’s operations, which may in itself cause directors to reallocate corporate resources to environmental protection. ESV may also improve corporations’ environmental disclosure and impact social norms of corporate behaviour with respect to the environment. Any negative impact of ESV on present shareholder returns is justified by the obligation to avoid imposing foreseeable severe or irreparable environmental harm on future generations.

This thesis explores the often overlooked nature of public law duty and its relationship with the doctrine of standing in English law. Drawing on English and North American legal tradition and thought, it posits that public law obligations should be reconceived of as fiduciary in nature, vesting correlative enforcement rights in citizens to constrain unlawful exercises of public power. This should correspond to the abolition of standing requirements and recognition of the rights of citizens and interest groups to bring administrative and human rights challenges before the courts. This thesis also aims to achieve some synthesis between liberal normativism and communitarianism by recognizing both the individual and the collective interests at stake in public interest litigation.

This thesis explores the often overlooked nature of public law duty and its relationship with the doctrine of standing in English law. Drawing on English and North American legal tradition and thought, it posits that public law obligations should be reconceived of as fiduciary in nature, vesting correlative enforcement rights in citizens to constrain unlawful exercises of public power. This should correspond to the abolition of standing requirements and recognition of the rights of citizens and interest groups to bring administrative and human rights challenges before the courts. This thesis also aims to achieve some synthesis between liberal normativism and communitarianism by recognizing both the individual and the collective interests at stake in public interest litigation.