This chapter considers the institutional implications of the multi-factoral model in national law. Given its involving an ineliminable need for judgment, this chapter argues for an approach to law reform that focuses on enhancing the quality of decision-making within the corporation surrounding its fundamental rights obligations. Doing so, I argue requires focusing much attention on reforms to corporate law that can help ‘constitutionalise’ fundamental rights within the basic legal structure of the corporation itself. I propose a series of law reforms that include expanding the diversity of the directors; developing a new fiduciary duty specifically relating to fundamental rights; enhancing disclosure requirements; developing a new enforcement action allowing directors to be sued in their personal capacity for rights violations; creating regulatory fines and financial penalties for rights violations; implementing an enhanced framework for shareholder obligations; rejecting the business judgment rule where fundamental rights are involved; and the utilisation of dialogical remedies by courts.

This chapter examines the nature of trusteeship and the possible actions for breach that can be brought by the beneficiaries. Breach can arise by commission [actively commiting a breach of trust]or by omission [failing to carry out a duty owed by the trustee]. The duties of a trustee arise either under common law or under statute or under the trust instrument. A trustee is liable for any breach of trust that causes a loss to the beneficiaries and must restore the equivalent value. The trustee will only be liable for a breach that caused the loss to the fund and the claimant must establish a causal link. The liability of trustees is joint but the beneficiaries can choose to only sue one trustee but in some cases the court may indemnify a trustee such as where one trustee has acted fraudulently. The beneficiaries may be able to claim interest as well as compensation from the fund. Trustees may be able to rely on an exemption clause which will exonerate them from liability. If there is no exemption clause trustees may be able to rely on other defences such as consent of the beneficiaries or the statutory defence under s.62 Trustee Act 1925.