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From fiduciary duties to fiduciary relationships for socially responsible investing: responding to the will of beneficiaries

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  • Benjamin J. Richardson

Abstract

This article examines whether socially responsible investing (SRI) may be legally permissible if it fulfils the will of the beneficiaries in a fiduciary relationship, and considers potential legal reforms to give better effect to the interests of beneficiaries. It thus examines a relatively neglected aspect of fiduciary finance, which so far has focused on whether SRI is ‘financially material’ to investment performance. It argues that by reframing fiduciary finance as an active relationship rather than merely the mechanical application of legal duties, we may allow trustees to invest socially pursuant to the wishes of beneficiaries. However, this article also suggests that considerable legal and practical obstacles confront this path to SRI. They include the trustees' duty to treat different beneficiaries even-handedly and the traditionally passive role that trust law has cast beneficiaries. Reliance on widely held social customs and evaluation of third parties' interests as a proxy for the will of beneficiaries, and the role of statutory reforms mandating consultation with and representation of beneficiaries on the governing boards of trustees, are also considered in this article. It concludes by suggesting some potential legal reforms to strengthen reliance on the will of beneficiaries as a means of SRI.

Suggested Citation

  • Benjamin J. Richardson, 2011. "From fiduciary duties to fiduciary relationships for socially responsible investing: responding to the will of beneficiaries," Journal of Sustainable Finance & Investment, Taylor & Francis Journals, vol. 1(1), pages 5-19, February.
    • Handle: RePEc:taf:jsustf:v:1:y:2011:i:1:p:5-19
    DOI: 10.3763/jsfi.2010.0002
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    Citations

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    Cited by:

    1. Maria Carolina Rezende de Carvalho Ferreira & Vinicius Amorim Sobreiro & Herbert Kimura & Flavio Luiz de Moraes Barboza, 2016. "A systematic review of literature about finance and sustainability," Journal of Sustainable Finance & Investment, Taylor & Francis Journals, vol. 6(2), pages 112-147, April.
    2. Borgers, A.C.T., 2014. "Responsible investing : New insights into performance and tastes," Other publications TiSEM 587e777f-c242-4a44-968e-7, Tilburg University, School of Economics and Management.
    3. Helen J. Mussell, 2023. "Theorising the Fiduciary: Ontology and Ethics," Journal of Business Ethics, Springer, vol. 186(2), pages 293-307, August.
    4. Fernando Muñoz, 2020. "How do the size and independence of the board of trustees affect the financial and sustainable performance of socially responsible mutual funds?," Corporate Social Responsibility and Environmental Management, John Wiley & Sons, vol. 27(4), pages 1834-1850, July.
    5. Apostolakis, George & van Dijk, Gert & Kraanen, Frido & Blomme, Robert J., 2018. "Examining socially responsible investment preferences: A discrete choice conjoint experiment," Journal of Behavioral and Experimental Finance, Elsevier, vol. 17(C), pages 83-96.
    6. Helen Mussell, 2019. "Elucidating Limited Shareholder Engagement: Identifying Ethical and Epistemological Factors in the Fiduciary," Working Papers wp516, Centre for Business Research, University of Cambridge.
    7. Brandstetter Lisa & Lehner Othmar M., 2015. "Opening the Market for Impact Investments: The Need for Adapted Portfolio Tools," Entrepreneurship Research Journal, De Gruyter, vol. 5(2), pages 87-107, April.
    8. Helen Mussell, 2019. "Fiduciary - Asymmetrical Power, Asymmetrical Care," Working Papers wp511, Centre for Business Research, University of Cambridge.
    9. Matthew M Haigh & Matthew A Shapiro, 2013. "Do Environmental Policy Instruments Influence Fiduciaries' Decisions?," Environment and Planning A, , vol. 45(4), pages 853-871, April.

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