Historical Foundations of Choice of Law in Fiduciary Obligations

Abstract

This paper conducts a historical analysis to reveal whether, and to what extent, the public policy doctrine applies to resolve choice of law questions concerning fiduciary obligations. Unlike common law procedures, equity procedures prior to the Judicature Act reforms had provided fertile ground for judicial analysis on conflicts problems. Equity's application of its own principles in matters with foreign elements is the result of a long-standing policy of the forum originating in the historical jurisprudence of the Court of Chancery. Chancery jurisprudence explains and justifies the general application by modern Australian courts of their own equitable principles to govern claims for breach of fiduciary duty in the presence of foreign elements. The fiduciary doctrine in equity by virtue of its deep moral foundation and protective nature warrants protection under the public policy doctrine. Applying the public policy doctrine to fiduciary obligations provides certainty, simplicity and a secure footing for protecting the reasonable and legitimate expectations of litigants.

Keywords: equity, fiduciary duties, private international law, conflict of laws, legal history

JEL Classification: K10, K29, K30, K36, K40, K41