Fiduciaries frequently confront transnational situations. Lawyers – an archetypal class of fiduciary – have long counseled participants in cross-border transactions and conducted their own activities transnationally.1 Financial institutions – firms that often act in a fiduciary capacity2 – have provided products transnationally for centuries.3

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.

In recent years, fiduciary law has moved toward the center of scholarly attention in the common law world.1 In spite of its “elusive” nature,2 enough instances of fiduciary relationships occur across a wide variety of legal areas that many – with good cause – describe it as a distinctive field.3 Courts as well as scholars in common law jurisdictions deal concepts and ideas concerning fiduciary law back and forth.4 Although civil law countries have no tradition of the trust as a legal institution,5 courts and scholars alike term relationships based on some kind of personal or professional trust “fiduciary.”6 German law subjects guardians,7 trustees in bankruptcy,8 attorneys,9 and others to a specific set of fiduciary duties, the most important of which is a duty of loyalty.10 France has introduced “la fiducie,” a substitute for the common law trust.11 Indeed, civil law countries have long combined property and contract law in order to fashion substitutes for the common law trust. Contract-based Treuhandverhältnisse – that is, relationships of trust – have been a staple part of the German legal discourse for several decades, if not centuries.12 And in recent years, the trust as a legal institution is gaining ground in civil law jurisdictions, following national recognition of the Hague Trust Convention by countries such as Italy and the Netherlands.13

This introduction presents the book’s framework for the study of the transnational legal ordering of fiduciary law. It notes the key conceptual tools of TLO theory (such as normative settlement and the recursivity of law) and explains how these tools bear upon analytic, normative, and sociolegal inquiries into transnational fiduciary law. The introduction discusses the role of framing problems in fiduciary terms in transnational legal ordering, the potential, but uneven, formation and institutionalization of fiduciary law transnationally, the recursive, transnational development and limits of fiduciary law over time, the conceptual frontiers of transnational fiduciary law, and the contributions of the book’s chapters. The conclusion presents the book’s principal findings regarding fiduciary law and its relation to theorizing transnational legal ordering.

Peer-to-peer platforms such as Airbnb, Turo, TaskRabbit, Eatwith, and Uber are transnational market actors, generating millions of transactions, in multiple jurisdictions across the globe. These companies connect individuals and small businesses via online platforms and mediate transactions in the real, offline world between owners and renters, service providers and service recipients. Despite their clear importance and their market influence, the legal role of peer-to-peer platforms remains elusive. The emerging transnational legal order is a mixture of self-regulation and sporadic, concrete state or local regulation in several jurisdictions. I suggest thinking of platforms as transnational actors and offer a conceptualization of their legal role. Access platforms create and maintain a market with its own rules, conventions, and entry and exit points. To capture the role of platform as constituting a market, I rely on fiduciary law, an area of private law area concerned with power and vulnerability. This role creates duties toward the participants in this market. This duty explains why, for example, the platform should be responsible for the discriminatory actions of its participants. Other obligations include the duty to give prior notice before pulling out from an area of activity, and duty to create and maintain fair entry and exit rules.

Scores of lawsuits have pushed retirement plan sponsors to shorter, easier-to-navigate menus, but – as Ian Ayres and Quinn Curtis argue in this work – we’ve only scratched the surface of retirement plan design. Using participant-level plan data and straightforward tests, Ayres and Curtis show how plan sponsors can monitor plans for likely allocation mistakes and adapt menus to encourage success. Beginning with an overview of the problem of high costs and the first empirical evidence on retirement plan fee lawsuits, they offer an overview of the current plan landscape. They then show, based on reforms to a real plan, how streamlining menus, eliminating pitfalls, and adopting static and dynamic limits on participant allocations to certain risky assets or “guardrails” can reduce mistakes and lead to better retirement outcomes. Focusing on plausible, easy-to-implement interventions, Retirement Guardrails shows that fiduciaries need not be limited to screening out funds but can design menus to actively promote good choices.

Scores of lawsuits have pushed retirement plan sponsors to shorter, easier-to-navigate menus, but – as Ian Ayres and Quinn Curtis argue in this work – we’ve only scratched the surface of retirement plan design. Using participant-level plan data and straightforward tests, Ayres and Curtis show how plan sponsors can monitor plans for likely allocation mistakes and adapt menus to encourage success. Beginning with an overview of the problem of high costs and the first empirical evidence on retirement plan fee lawsuits, they offer an overview of the current plan landscape. They then show, based on reforms to a real plan, how streamlining menus, eliminating pitfalls, and adopting static and dynamic limits on participant allocations to certain risky assets or “guardrails” can reduce mistakes and lead to better retirement outcomes. Focusing on plausible, easy-to-implement interventions, Retirement Guardrails shows that fiduciaries need not be limited to screening out funds but can design menus to actively promote good choices.

Scores of lawsuits have pushed retirement plan sponsors to shorter, easier-to-navigate menus, but – as Ian Ayres and Quinn Curtis argue in this work – we’ve only scratched the surface of retirement plan design. Using participant-level plan data and straightforward tests, Ayres and Curtis show how plan sponsors can monitor plans for likely allocation mistakes and adapt menus to encourage success. Beginning with an overview of the problem of high costs and the first empirical evidence on retirement plan fee lawsuits, they offer an overview of the current plan landscape. They then show, based on reforms to a real plan, how streamlining menus, eliminating pitfalls, and adopting static and dynamic limits on participant allocations to certain risky assets or “guardrails” can reduce mistakes and lead to better retirement outcomes. Focusing on plausible, easy-to-implement interventions, Retirement Guardrails shows that fiduciaries need not be limited to screening out funds but can design menus to actively promote good choices.

Scores of lawsuits have pushed retirement plan sponsors to shorter, easier-to-navigate menus, but – as Ian Ayres and Quinn Curtis argue in this work – we’ve only scratched the surface of retirement plan design. Using participant-level plan data and straightforward tests, Ayres and Curtis show how plan sponsors can monitor plans for likely allocation mistakes and adapt menus to encourage success. Beginning with an overview of the problem of high costs and the first empirical evidence on retirement plan fee lawsuits, they offer an overview of the current plan landscape. They then show, based on reforms to a real plan, how streamlining menus, eliminating pitfalls, and adopting static and dynamic limits on participant allocations to certain risky assets or “guardrails” can reduce mistakes and lead to better retirement outcomes. Focusing on plausible, easy-to-implement interventions, Retirement Guardrails shows that fiduciaries need not be limited to screening out funds but can design menus to actively promote good choices.

Scores of lawsuits have pushed retirement plan sponsors to shorter, easier-to-navigate menus, but – as Ian Ayres and Quinn Curtis argue in this work – we’ve only scratched the surface of retirement plan design. Using participant-level plan data and straightforward tests, Ayres and Curtis show how plan sponsors can monitor plans for likely allocation mistakes and adapt menus to encourage success. Beginning with an overview of the problem of high costs and the first empirical evidence on retirement plan fee lawsuits, they offer an overview of the current plan landscape. They then show, based on reforms to a real plan, how streamlining menus, eliminating pitfalls, and adopting static and dynamic limits on participant allocations to certain risky assets or “guardrails” can reduce mistakes and lead to better retirement outcomes. Focusing on plausible, easy-to-implement interventions, Retirement Guardrails shows that fiduciaries need not be limited to screening out funds but can design menus to actively promote good choices.

Scores of lawsuits have pushed retirement plan sponsors to shorter, easier-to-navigate menus, but – as Ian Ayres and Quinn Curtis argue in this work – we’ve only scratched the surface of retirement plan design. Using participant-level plan data and straightforward tests, Ayres and Curtis show how plan sponsors can monitor plans for likely allocation mistakes and adapt menus to encourage success. Beginning with an overview of the problem of high costs and the first empirical evidence on retirement plan fee lawsuits, they offer an overview of the current plan landscape. They then show, based on reforms to a real plan, how streamlining menus, eliminating pitfalls, and adopting static and dynamic limits on participant allocations to certain risky assets or “guardrails” can reduce mistakes and lead to better retirement outcomes. Focusing on plausible, easy-to-implement interventions, Retirement Guardrails shows that fiduciaries need not be limited to screening out funds but can design menus to actively promote good choices.

Scores of lawsuits have pushed retirement plan sponsors to shorter, easier-to-navigate menus, but – as Ian Ayres and Quinn Curtis argue in this work – we’ve only scratched the surface of retirement plan design. Using participant-level plan data and straightforward tests, Ayres and Curtis show how plan sponsors can monitor plans for likely allocation mistakes and adapt menus to encourage success. Beginning with an overview of the problem of high costs and the first empirical evidence on retirement plan fee lawsuits, they offer an overview of the current plan landscape. They then show, based on reforms to a real plan, how streamlining menus, eliminating pitfalls, and adopting static and dynamic limits on participant allocations to certain risky assets or “guardrails” can reduce mistakes and lead to better retirement outcomes. Focusing on plausible, easy-to-implement interventions, Retirement Guardrails shows that fiduciaries need not be limited to screening out funds but can design menus to actively promote good choices.

Scores of lawsuits have pushed retirement plan sponsors to shorter, easier-to-navigate menus, but – as Ian Ayres and Quinn Curtis argue in this work – we’ve only scratched the surface of retirement plan design. Using participant-level plan data and straightforward tests, Ayres and Curtis show how plan sponsors can monitor plans for likely allocation mistakes and adapt menus to encourage success. Beginning with an overview of the problem of high costs and the first empirical evidence on retirement plan fee lawsuits, they offer an overview of the current plan landscape. They then show, based on reforms to a real plan, how streamlining menus, eliminating pitfalls, and adopting static and dynamic limits on participant allocations to certain risky assets or “guardrails” can reduce mistakes and lead to better retirement outcomes. Focusing on plausible, easy-to-implement interventions, Retirement Guardrails shows that fiduciaries need not be limited to screening out funds but can design menus to actively promote good choices.

In 2006, the Japanese law of nonprofits underwent a major reform. Notably, the reform involved a shift in the governance mechanism from external governmental oversight to a structure that emphasizes internal fiduciary governance. As the Japanese law in this area has historically been marked by various strands of fiduciary rules derived from different sources, the event presents a valuable case study on how the shift to a fiduciary governance approach can impact the operation of those entities that are subject to the reform. This chapter will begin with a historical account of the evolution of Japanese nonprofit law that involves complex interactions among the indigenous nonprofit tradition, the civil law influence, American fiduciary principles, and the English-style charity commission. After discussing the major components of the 2006 reform against the backdrop of major events that created the reform momentum, this chapter will use available empirical evidence to critically examine the reform’s achievements and consider any remaining issues that pose ongoing challenges.

This chapter examines two modalities of equitable intervention in corporate governance in cases of shareholder conflict. The first involves the extension of fiduciary duties to controlling shareholders, and the second judicial review on the grounds of oppression. Both forms of intervention are intended to be responsive to pathologies inherent in majoritarian governance in organizations featuring enfranchised members. Notwithstanding long-settled authority in Delaware and other American states for the proposition that controlling shareholders are fiduciaries of minority shareholders, I argue that fiduciary regulation is an inapt modality of equitable intervention given the nature of the problems generated by majority rule in corporations. By comparison, the oppression remedy—favored in commonwealth jurisdictions—enables more apt and effective tailored responses to these problems. The choice between these modalities of intervention implicates a choice between equity’s supplemental contributions to first-order law and its corrective, second-order intervention in first-order law. The chapter concludes with some general reflections on the place of equity in contemporary law.

This introduction traces aspects of the history of fiduciary duties in business law and scholarship. Despite fiduciary law’s centrality to business law, the chapter describes how the contractarian revolution of the 1980s contributed to the marginalization of fiduciary duties, both in theory and doctrine. However, subsequent developments, both in case law and in scholarship, have questioned some of the core assumptions of the early wave of contractarian theory. The introduction outlines three critiques that scholars have levied against the early contractarians’ view of fiduciary duties, and connects these critiques to the eighteen chapters in the volume. The introduction also provides a roadmap of our contributors’ arguments.

This chapter offers a new explanation for mandatory fiduciary protections in certain business relationships—the preservation of trust that might otherwise be eroded through the bargaining process. Any contract a hypothetical entrepreneur and an investor might enter would inevitably be incomplete and give rise to potential opportunistic behavior. While the parties could draft a more detailed agreement prohibiting various forms of opportunism, the very act of bargaining over these protections could undermine whatever trust existed between the parties at the outset of their relationship. By contrast, a prohibition limiting opportunism in state-imposed fiduciary obligations removes the invocation of distrust by either party to the agreement. Fiduciary protections, however, do not provide a perfect solution in all business relationships. Although fiduciary duties can usefully constrain opportunism and preserve trust in vertical business relationships, such as in a simple principal-agent arrangement, other situations involve complexity that pose challenges for fiduciary law. We illustrate this observation with examples of various horizontal conflicts, or diverging interests, in the venture capital-backed startup context. To the extent that contract and fiduciary law are each incomplete, a residual domain for trust and other mechanisms for risk reduction or self help remains.

Political (Dis)Trust and Fiduciary Government analyzes the relationship between two key ideas in modern political thought: political trust and fiduciary government. The chapter begins with fiduciary government. Miller distinguishes ‘thick’ from ‘thin’ variants on the idea of fiduciary government. Thick variants place substantial normative weight on the idea, claiming, for example, that it solves the problem of political authority and provides an independent normative basis for the recognition of specific legal rights. Thin variants make much more modest claims. Miller’s own thin account, deployed here, suggests that fiduciary government articulates conditions under which the conduct of government can be understood as truly representative. By comparison with this thin conception of fiduciary government, an understanding of political trust as a particularized (or focused) and objective (or manifest) form of trust shown (or withheld) by citizens in public officials does distinct work. Briefly: it illuminates understanding of the political conditions and activity on which fiduciary government depends. That said, Miller also notes that ideals of fiduciary government and of political trust, where instantiated, dovetail: demands of fiduciary government enable public officials to prove trustworthy in ways that promote political trust, while also creating space for constructive forms of political distrust.