ERISA strictly regulates fiduciaries. While ERISA’s fiduciary rules were abstracted from state trust law, several important departures exist. Congress adopted a broad functional definition of fiduciary so that all decision makers – not just asset managers (traditional trustees) – can be held accountable. Importantly, however, decisions by employers respecting the design, establishment, or modification of an employee benefit plan are not fiduciary acts for they do not implicate program management (the so-called settlor versus trustee distinction). ERISA specifies a stringent set of fiduciary duties, including four major obligations: loyalty; prudence; compliance with plan terms that do not violate ERISA; and (generally) investment diversification. Plan provisions that would excuse fiduciary breach (exculpatory clauses) are explicitly barred. In addition, certain transactions involving insider dealings with the plan are prohibited regardless of fairness or whether loss ensues. Fiduciary liability with regard to participant-directed investments has received careful attention from both courts and regulators and is specially examined in the chapter.

This chapter will use the historical evolution of fiduciary norms in Japan and East Asia to examine the intersection of fiduciary law and transnational legal ordering theory. Various strands of fiduciary notions arrived in East Asia as part of modernization effort beginning in the late nineteenth century. The civilian regulation of conflicted transactions and duty of care was introduced in Japan, South Korea, and Taiwan as part of Civil Code and Commercial Code, which was followed by statutory introduction of common law trust in early twentieth century, and American corporate governance theory after World War II. Singapore and Hong Kong adopted English common law and equity jurisprudence along with legislations that follow UK and Commonwealth models, which were frequently updated to meet the demands of international financial market. While tensions among common law, civil law, and indigenous norms were conspicuous during the early phases of modernization and reception, more recent decades of globalization have seen greater scale and dynamics of transnational interactions, most notably the rise of UK-style soft law initiative. Throughout the regional history, fiduciary norms have been shaped by shifting colonial pressures and economic hegemony, wars, revolutions, and financial crises, as well as legislative imitation and academic learning. By way of conclusion, this chapter argues that while fiduciary law presents a rich field for exploring process of transnational legal ordering, the theory of transnational legal ordering provides a valuable framework to understand both historical and contemporary evolution of fiduciary law both in individual jurisdictions and across jurisdictional borders.

High net-worth (and sometimes high-profile) families in Singapore continue to face internal disputes. These disputes sometimes lead to litigation about matters relating to trusts, estates, family companies and, increasingly, mental capacity issues. This paper will discuss some recent developments in Singapore in relation to family wealth disputes. They will particularly consider cases relating to mental capacity, jointly owned property and family businesses and companies.

There is an old Chinese saying - 富不过三代 - Wealth does not pass three generations. Lady Arden’s keynote speech will be a tour d’horizon of some of the problems in trust law, such as those that arise in relation to the right to information, challenges to trustees’ exercise of discretion, informality in trusts and the fallout from settlor-dominated trusts.

This will be a short introduction to the book, establishing its scope and themes, and drawing out the links between the individual papers within each section of the book and between the sections more generally.

The statutory regime that governs employee benefit plans includes fiduciary provisions that track the obligations of loyalty and care developed in trust law. Relationships among key benefit plan actors, however, never have mapped neatly onto the trust law structure of settlors, trustees, and beneficiaries. In particular, the self-interest of the employers that sponsor benefit plans is in tension with their fiduciary obligations. Changes in the relative importance of some types of benefit plans have caused the tensions to become more acute. To address the relationships among benefit plan actors and the tensions between self-interest and fiduciary obligation, courts have developed implementing rules to adapt the fiduciary standards to the employee benefit plan ecosystem. This chapter compares two implementing rules to identify differences in the ways they function and have adapted to the current plan paradigms.

The Thai Civil and Commercial Code expressly prohibits the creation of trusts except when provided for by specific legislation. To date, there is only one such piece of legislation: the Trust for Transactions in the Capital Market Act of 2007. However, the history of trusts in Thailand dates back to the late 19th century, and whilst the separation of legal and equitable titles does not sit well with the Code’s legal or intellectual framework, it is possible to provide a coherent explanation of its historical development through the lens of legal pragmatism.This chapter investigates the journey of trust law in Thailand, which runs in parallel with the country’s expansion of international trade and its industrial modernisation. It traces the historical judicial treatment of English common law trusts and the more modern regulatory attempt to integrate statutory trusts into the Thai legal system. Whilst both avenues demonstrate a highly adaptive and pragmatic approach to this imported equitable creature, they appeal to different legal and public policy considerations. With the Draft Bill on Trusts for the Purpose of Personal Asset Management having received cabinet approval in 2018, Thailand now stands at an important juncture for the development of its future trust law regime.

Some interpersonal interactions involve substantial trust, while others do not. The interaction between an infirm, elderly parent who needs personal care or management of assets and an adult child who undertakes to provide it is an example of a relationship that typically involves substantial trust. Some other interactions, however, even long-term interactions or those between repeat players, can require much less trust because the terms of the arrangement are specific and entail strong verification protocols. This chapter focuses on the trust, in the precise legal sense of that term, and the relationship between the trustee of the trust and the trust’s beneficiaries and settlor. To what extent does trusteeship in the legal sense require trust in the general sense? The chapter examines the features of the express trust under modern U.S. law and practice that would seem to require there to be a significant degree of trust in the trustee by the trust’s beneficiaries and/or settlor. The paper also examines the features of modern U.S. trust law and practice that attempt to protect the trust’s settlor and/or beneficiaries so that they need not place worryingly high levels of trust in the trustee.