Toward a practical theory of fiduciary government

My next book is provisionally entitled,‘Fiduciary Duties, Art and Cultural Heritage’ which in my free time I have already started to research, and am planning to complete for publication in 2023.

A specific question I am addressing is whether, and to what extent there is a bridge between:

(i)     the existence of fiduciary duties in International Law; and

(ii)     the jurisdiction and powers of the English court to award equitable remedies for breach of fiduciary duty in relation to dealings with art and antiquities.

In other words, where there is a lacunae in international law, or a treaty is ineffective, can or does equity give ancillary teeth to international humanitarian law?

In ‘A Fiduciary Theory of Jus Cogens’ , The Yale Journal Of International. Law [Vol 34:331-386], Evan J Criddle and Evan-Fox Decent developed a fiduciary theory of jus cogens [i.e. norms that command peremptory authority, superceding conflicting treaties and customs in international law], arguing that, ‘States must honor peremptory norms as basic safeguards of dignity because they stand in a fiduciary relationship with all persons subject to their power and therefore bear specific duties to guarantee equal security under the rule of law … [and] that this fiduciary model of state sovereignty advances international human rights discourse beyond vague notions of “public policy”, “international consensus”, and “normative hierarchy” toward a more theoretically defensible and analytically determinate account of peremptory norms.’

This was the first step. Following in their footsteps I need to unpack the fiduciary model’s consequences for future litigation to enforce alleged jus cogens violations, including the following threshold concerns:

·       standing;

·       sovereign immunity;

·       causes of action available under English private law;

·       compulsory jurisdiction;

·       forums;

·       the availability of equitable remedies; and

·       recognition and enforcement of English court orders in trans-national litigation.

This rests upon the development of a practical theory of fiduciary government relevant to art, cultural heritage, and diplomacy, that has teeth. That has is roots (i.e. foundational principles) in classical jurisprudence and the development of the philosophy of equity – which is where I will begin my journey.

For more information please visit the ‘Art & Antiquities Disputes’ page at www.ihtbar.com or google ‘Art Dispute Barrister’ which appears on page 1 of Google worldwide (and today is at the top).

My book the Contentious Trusts Handbook 2020, 1st Edition which is available to view in the Library at Lincoln’s Inn also contains a practice note contributed by the distinguished Art Historian, Pandora Mather Lees (https://www.artonsuperyachts.com/), entitled, ‘Art & Heritage Assets – Duties of Trustees’.

For more information about the Library please visit: Library & Archives – Lincoln’s Inn

To purchase the book, which costs £100 and runs to 400 pages, please visit:

Wildy & Sons Ltd — The World’s Legal Bookshop : Islam, Carl

Contentious Trusts Handbook – Law Society Bookshop

My article ‘Judicial Early Evaluation – The new normal’ is scheduled for publication in the forthcoming issue 7 (2020) of Trusts & Trustees (Oxford University Press), which is distributed worldwide: https://academic.oup.com/tandt/

My next article, which I am planning to co-author with a leading trust law academic in 2021 is about ‘Trustees duties and powers in relation to property and investments – A restatement.’

Wishing all readers a joyous Christmastime and a Happy, Healthy, and Prosperous New Year.

Carl Islam

1 Essex Court, Middle Temple, London, www.ihtbar.com; www.1ec.co.uk;

carl@ihtbar.com