Scholarship@WashULaw

Document Type

Book Section

Publication Date

2023

Publication Title

Transnational Fiduciary Law (Seth Davis, Thilo Kuntz & Gregory Shaffer eds., Cambridge University Press (forthcoming 2023)

Abstract

Fiduciaries frequently confront transnational situations. Yet, even as people, products, and capital have become more mobile, scholars have until recently given little attention to the transnational dimensions of fiduciary law.

This chapter conceptualizes transnational fiduciary law, a term that marries the fields of fiduciary and transnational law. It identifies two primary understandings of the concept and explores their scope and possible content.

Under the first interpretation of this composite concept, the term transnational qualifies what fiduciary scholars have conventionally understood as fiduciary law. Transnational fiduciary law, on this view, encompasses the application of fiduciary law to transnational problems and situations. Under the second interpretation, transnational fiduciary law refers not to fiduciary law as applied in transnational contexts but rather to transnational law governing the conduct of fiduciaries. Transnational law lacks a universally accepted definition. Nevertheless, here we seek some wider notion of a “legal order” that is said to govern the behavior of parties operating within it. As such, this second understanding largely encompasses the first interpretation but extends more broadly to include norms, contractual constraints, customary practices, official guidance, and assorted voluntary schemes all of which might achieve similar objectives to fiduciary law.

In this chapter, I argue that scholarly attention to the transnational dimensions of fiduciary law ought in most instances to be bounded by the first interpretation. Fundamentally, I question whether transnational law governing fiduciaries generally can be equated with fiduciary law at all without causing significant confusion. Fiduciary duties are distinctive in ways that prevent non-fiduciary law—to say nothing of vague and shifting norms—from serving as substitutes. Another difficulty with the second interpretation is that legal norms and practices that appear to serve similar functions as fiduciary law may be rarely stated and therefore difficult to verify. When they are stated, they may be vague and provisional, making it hard to determine whether transnational fiduciary law in this second sense exists at all in practice. The chapter provides case studies illustrating the difficulty of isolating the second interpretation, except as it reduces to the first through its incorporation of fiduciary law applied in transnational contexts.

I do not claim that the transnational dimensions of fiduciary law are irrelevant. Nor do I reject the importance of transnational law or transnational legal ordering. However, I suggest that we treat transnational fiduciary law as an application of fiduciary law rather than as a field deserving independent study, at least until we can establish that transnational fiduciary law—on the first interpretation—is itself distinct from fiduciary law.

Keywords

Transnational Fiduciary Law, Transnational Law, Fiduciary Law, Transnational Legal Orders, Tlos, Financial Services Regulation

Publication Citation

Transnational Fiduciary Law, (Seth Davis, Thilo Kuntz, & Gregory Shaffer eds., (forthcoming 2023)

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