CLMR Working Paper Series:A Servant of Two Masters? Conflicts of Duty in the Australian Financial Services Industry (16-2)
M Scott Donald
The classic fiduciary proscription on conflicts of duties would, on a strict reading, challenge institutional structures common in Australia’s financial services industry. This article considers the application of that proscription to the evolving models of governance found in the superannuation and managed funds sectors. It addresses specifically the situation where incorporated trustees act for more than one superannuation fund or managed investment scheme, and also the situation where individuals occupy multiple directorships either within horizontally and vertically integrated financial services groups or in unrelated entities. It also briefly addresses the contested issue of independence on superannuation fund boards. The article finds that traditional equitable principles are capable of addressing most of the issues raised by these situations but that the regulatory state is increasingly employing statutory and other means to supplement and buttress those equitable principles, resulting not just in multi-valency but also an evolution in the substantive content of the proscription on conflicts specifically in the context of financial services.
Full paper [circulation draft]