Wednesday, May 26, 2021
Ying Khai Liew recently published an article entitled, Third-Party Liability for Breach of Fiduciary Duty in Malaysia, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
Commonwealth jurisdictions face a unique risk when English authorities are misunderstood or misapplied by local courts: erroneous legal rules can quickly become entrenched in the local laws, which are difficult to undo. The Malaysian jurisprudence in relation to the liability of third parties for breach of fiduciary duty provides clear examples this sort of risk. This paper examines in detail these third-party claims — tracing-related claims, recipient liability, and assistant liability — in the light of English law, and explains how they contain errors which are (or threaten to be) entrenched irreversibly within the local jurisprudence. It exhorts Malaysian courts to revert to orthodox principles, and more generally suggests that Commonwealth jurisdictions must independently engage with the substantive reasons of various legal rules, instead of adopting legal rules simply on the basis that those rules reflect what they understand to be English law.