Best Interest Duties of Financial Advisers - More Law, More Confusion

Abstract

Best interest is a commonly used and misunderstood phrase interpreted differently in the law, media, legislature and throughout the investment chain, sometimes glibly. For investors, best interest has been confused with oft-misguided concepts of undivided loyalty to their economic interests. These differing interpretations influence every financial advice relationship, including process. That process differs with varying statutory applications of best interest. For example, best interest in Australian investment decisions conflicts with modern portfolio theory. The law is complex, often uncertain, and lags comparative jurisdictions. The FASEA Code of Ethics creates new law that adds to that uncertainty. Financial advice is provided throughout the investment chain. Competency requires comprehension of the underlying best interest duties governing those financial assets. The courts will also need to have regard to these other contextual interpretations of best interest to resolve uncertainty. That includes the best interest heritage in equity.