| Project Objectives : |
| To strengthen understanding of the conceptual basis of each constraint on trustee discretion. There is a large volume of scholarship demonstrating the relationship between exercise of the duty of loyalty and the consequences for breaching it, as well as the remedies available for such breaches. However, frameworks for understanding other constraints such as the duty of good faith and duty of care remain inadequate, although these constraints are vital and deserving of more study both in theory and in practice. In theory, they constrain trustees’ discretion no less than the duty of loyalty. In practice, they may arguably be even more important than the duty of loyalty. This project provides an opportunity to revisit these under-studied constraints and their underlying operational logic. |
| To provide normative insight into the interactions among constraints. Although many academics have analyzed the operation of certain constraints, no normative inquiry into what a coherent and sound framework for controlling trustees’ discretionary powers should look like has yet been attempted systematically. Clarification of this inquiry is significant in both the theoretical and academic senses. Theoretically, it helps to observe the application of each constraint and the extent to which one constraint overlaps with another, as well as to dispel unnecessary confusion over the validity of actions that breach one or more constraints. Practically, it helps to facilitate people’s autonomy in the use of express trust devices. If the law concerning constraints on discretionary powers and their interaction can be coherently interpreted, property owners can clearly understand how intended trustees may perform their managerial and distributive duties, and then determine whether to engage with the trust device. Intended trustees can also clearly understand the standard of conduct they need to follow when managing trust affairs, and then decide whether to accept the trusteeship. |
| To furnish comparative law scholarship with broader insight into the uniqueness of the constraints on trustee discretion in Hong Kong, Australia, and England. Although the literature examining the operation of these constraints in the three jurisdictions is not scarce, scholarly treatises exploring the similarities and differences among them and their interrelationships and interactions are not abundant. Neither is there any in-depth study that accounts for these similarities and differences from a normative perspective. The language of the constraints in Hong Kong and Australia reflects concepts that share similar characteristics and origins to those in England, which paves the way for comparing the three jurisdictions in analyzing trustees’ discretionary powers. At the same time, due to each jurisdiction’s particular legal tradition, their respective trusts law has also correspondingly developed distinctive incidents and characteristics. Building on the assumption that trusts law in all three jurisdictions is committed to autonomy enhancement, albeit in different ways and to different degrees, comparative study can encourage a proper appreciation of the distinct nature of the constraints in each jurisdiction, offer an opportunity to compare and discuss those constraints, and provide insight into the development of each jurisdiction’s trust law in future. |
| To improve understanding of the autonomy-enhancing role of trusts law in the private law system through the lens of trust constraints. This study will adopt autonomy theory, which is pertinent for two reasons. First, private law is concerned primarily with ensuring reciprocal respect between individuals in their “horizontal interactions” (Gardner, 2017, p. 189). The account of personal autonomy offers a critical lens for understanding the “equality and interdependence” (Wriggins, 2000, p. 325) of self-determining individuals. Trusts law is generally categorized as a branch of private law; therefore, the concept of personal autonomy provides a meaningful tool for exploring its structural features and operational logic. Second, there is a fertile literature examining contract law and property law from the perspective of personal autonomy. The creation of express private trusts can give rise to both contractual and proprietary effects, which suggests that trusts law may also have a commitment to personal autonomy and share similarities with contract law and property law in its approach to autonomy enhancement. The application of autonomy theory in this project will help to reveal how the constraints on trustee discretion interact with the notion of autonomy and whether their autonomy-enhancing role is unique or can be replicated by contract law and property law. |
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