Brokers and Investment Advisers – Addressing the Question of Fiduciary Standard in a Comparative Context
Volume 9 Issue 3-4 (2016)
With the increasing sophistication witnessed by financial markets, regulatory authorities across the globe have made conscious efforts to reorient their approach towards monitoring transactional activities; yet, they have failed to recognise the changes experienced by brokerage operations. This paper seeks to shed light on the emergence of advisory brokers in the con- temporary context which has exhibited substantial similarity to functions traditionally performed by investment advisers. While advisory relation- ships have been typically classified as fiduciary in the capital market jurisprudence, brokers have continued to evade such responsibility, despite operating in an unauthorised advisory capacity. This paper establishes a legal basis for harmonising rules of conduct governing advisers and brokers in order to respond effectively to the dynamic market practices in influencing broker-investor interactions. Demonstrating sensitivity to the issue of meaningful investor protection, this paper attempts to initiate a debate on questions of liability of advisers and brokers acting as fiduciaries in the Indian context, while culling out specific policy points surrounding the choice of a prescriptive/proscriptive model.