Legal Aspects of Fiduciary Duties in Malaysia

Name: Legal Aspects of Fiduciary Duties in Malaysia
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This work seeks to examine the principles of law in relation to the legal duties of fiduciaries. These duties are not only those that originate from the equitable jurisdiction of the court, but also involve some other duties imposed under written law as well as those developed at common law. The scope of fiduciary duties in private law is extensive – regulating the conduct of professions such as trustees, lawyers, company directors, company promoters, partners, and agents; and in some other relationships, the facts of the case may be such as justify the imposition of fiduciary duties on employees, financial advisors, bankers, and parties to joint venture, to quote a few examples. In instances not covered by precedent, fiduciary duties may be imposed where the hallmarks of trust and confidence are found.

The creation of the office of trustees under the companies as well as the capital markets and services statutes indicates the importance of the office of trustees, and the attendant fiduciary duties attached to trustees, in the corporate and financial sectors; and this is in addition to the existing principles of law, including those developed by equity, governing the exercise of directorial powers by company directors.

This publication should be welcomed not only by those who are involved in the teaching, practice and enforcing of the law but also by those to whom fiduciary obligations may apply, that is, everyone who may be bound by an obligation of loyalty to another party or parties in a given relationship, and their advisors.

Some fundamental aspects of fiduciary obligations covered include:

The presumption of fiduciary relationships, and when the presumption does not apply.
The test for the existence of fiduciary relationship in novel cases.
Fiduciary duties and the link with the duty of loyalty, good faith, and to serve the best interest of the principal.
The equitable obligation respecting confidential information.
Directors’ duty in equity and under written law.
Duty to avoid conflict of interest.
Duty to avoid making personal profit.
Defences.
Remedies, with emphasis on equitable compensation and account of profits.
Fiduciary duties in the public law context.
Breach of fiduciary duties and the criminal law, including sentencing.