Reconceptualising Fiduciary Regulation in Actual Conflicts

Abstract

This article reviews the fiduciary duty to avoid actual conflicts. It argues that the duty to avoid actual conflicts adds limited substantive value to fiduciary accountability. Its present form has also contributed to widespread misconception of what should be expected of an unfortunate fiduciary who finds themselves in such a position. In this respect, we propose that many of the modern scenarios involving actual conflicts of duties or conflicts of duties and interests are better analysed not in terms of conflict avoidance but in terms of conflict management. Our analysis paves the way for thoughtfully working out what the fiduciaries’ duties are in cases of actual conflict.

Keywords: equity, fiduciary duty, actual conflicts, informed consent, resignation

JEL Classification: K19