Theory and Rationale

This chapter critically examines the theoretical underpinnings of fiduciary law and of company law, presenting the rationale of conflicts regulation within that landscape. This is important given the changing terrain of fiduciary law. The duties to avoid conflicts and profits (the conflicts and profits rules) are a central feature of fiduciary law—indeed many scholars argue that these are now the only properly recognized (or ‘peculiarly’ fiduciary) duties. The chapter includes discussion of the concept of fiduciary loyalty and the practical importance of fiduciary classification. It examines the policy rationales for the duties.