CONFLICT OF INTERESTS AND OVERLAPPING DOCTRINES
By Tan Yock Lin
Date: 17 Mar 2004
Venue: Lee Sheridan Conference Room (3rd floor, Law Faculty)
The doctrines of undue influence, abuse of confidence and the duty of disclosure apparently overlap with the doctrine of conflict of interests. In some of these doctrines (especially undue influence), an influential notion is that the creation or existence of a special relationship justifies, if not demands, a subjective examination of the parties’ states of mind and individual weaknesses and vulnerabilities. It will be argued that psychological analyses are not very meaningful in understanding these doctrines and that clearer concepts are possible once it is realised that the doctrines under consideration are essentially different ways of modulating the amount of information available to the parties in a special relationship. With respect to the doctrine of conflict of interests, the need for (punitive) deterrence or to protect the integrity of the fiduciary relationship by encouraging unswerving loyalty has always had pride of place as its rationale. It will be argued that the punitive rationale is inadequate. To say that the fiduciary must be deterred from acting in preference to the client’s interests or that loyalty is to be promoted to the uttermost is to mistake the consequence for the essence. The no conflicts rule is really also a way of organising the information which a fiduciary must convey to his principal.
About the Speaker
Prof Tan Yock Lin teaches Property II in the Faculty of Law and is editor and co-author of Halsbury’s Laws of Singapore: Equity and Trusts (2003). He has dealt with similar issues with particular reference to solicitors as fiduciaries in his book, The Law of Advocates and Solicitors etc (2nd Ed) (1998) as well as participated in reform of the law of trusts.