Proscriptive or prescriptive? The neverending debate about fiduciary duties

Despite having existed for centuries, the nature of fiduciary duties, as with the nature of the trust itself, remains contentious. The traditional view  - that such duties are merely proscriptive and can therefore only impose negative duties -  has come under heavy attack from a novel Canadian approach which suggests that such duties are prescriptive, and can therefore impose positive duties. In recent times, this approach has moved beyond its Canadian base to Singapore (Credit Suisse Trust Limited v Ivanishvili [2024] SGCA (I) 5) and would also appear to be imposed on a statutory basis in New Zealand under the Trusts Act 2019. This paper will argue that the Canadian approach is, in effect, becoming a ’new orthodoxy’ and will explore the consequences of this for trustees and beneficiaries, as well as outline its firm theoretical and doctrinal foundations. Ultimately we will argue that, while innovative, the ‘new orthodoxy’ is more in line with fiduciary law’s fundamental principles than traditional orthodoxy.

About the Speaker

Lucas Clover-Alcolea is a lecturer at the Monash University, Faculty of Law where he teaches remedies and trusts. He was previously a lecturer at the University of Otago, Faculty of Law, and a postdoctoral associate in the Scheinman Institute on Conflict Resolution at Cornell University.  He completed his undergraduate law degree at Aberdeen, followed by an LLM at Edinburgh, and a DCL at McGill. His doctoral thesis was published in Spring 2022 by Edward Elgar Publishing as ‘The Arbitration of Trust Disputes’. His main areas of interest are equity and trusts, property, dispute resolution, legal history (with a particular focus on the  common law), international investment law, and legal theory. His work has been cited by the New Zealand Court of Appeal. 

Read Dr Clover-Alcolea bibliography and publications