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Vol 21 No 9 Sept/Oct 2016

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Goode on Commercial Law

Edited by: Ewan McKendrick
Price: £170.00

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The Hague Trusts Convention

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Jonathan HarrisProfessor of International Commercial Law, University of Birmingham

ISBN13: 9781841131108
ISBN: 1841131105
Published: May 2002
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £130.00

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Trusts cross borders. When they do, real difficulties may arise. Will the understanding of what a trust is be different in a foreign state? Will the rights, powers and duties of the trustee and settlor be the same? What rights will the beneficiary be able to assert? Which legal system will be applied to the trust? Whithin what limits? What if the trust needs to be recognized in a state which does not have the institution of the trust in its domestic law?

The Hague Trusts Convention, enacted into English law by the Recognition of Trusts Act 1987, seeks to ameliorate the situation by providing harmonized choice of law rules for ""trusts created voluntarily and evidenced in writing"". It also provides for the recognition of trusts in contracting states. Those contracting states should recognize the trust, even if they do not have the institution in their domestic law.

This text ananlyses the Convention. It is aimed at academics and practitioners; at private international lawyers and at trust lawyers. Frequent reference is made to the position in civil law states and other trust states.

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Conflict of Laws, Equity and Trusts
Part 1 The creation of transnational trusts - launching the rocker:
to what extent are matters of capacity and essential validity excluded from the Hague Trusts Convention?
the choice of law rule for capacity questions
the capacity of the trustee
the capacity of the beneficiary
the vesting of property in the trustee inter vivos
perpetuities and accumulations
the situs of equitable interests and dealings with subsisting equitable interests
transfers of subsisting equitable interests
incompletely constituted trusts and trusts of the benefit of a covenant
testamentary trusts - administration of estates
testamentary trusts - the law applicable to succession
capacity to create a testamentary trust
essential validity and testamentary trusts
forced heirship
the potential impact of the Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons of 1 August 1989
testamentary powers of appointment
matrimonial property regimes
the creation of transnational trusts in offshore jurisdictions
Part 2 The Hague Convention on the law applicable to trusts and on their recognition: evolution and application
the Convention's provisions - Article 1 functions of the Convention, Article 2 characteristics of the trust, Article 3 types of trust governed by the Convention, Article 4 exclusion of preliminary matters, the rocket-launcher and the rocket, Article 5 non-trust jurisdictions, Article 6 express of implied choice of law, Article 7 the applicable law in the absence of choice, Article 8 scope of the applicable law, Article 9 splitting the applicable law - the administration of trusts, Article 1- changing the applicable law, Article 11 the recognition of trusts, Article 12 registration of the trust, Article 13 right to refuse recognition to trusts objectively connected to non-trust states, Article 14 freedom to adopt more liberal recognition rules, Article 15 preservation of mandatory rules in related areas of law, Article 16 international mandatory rules of the forum, Article 17 exclusion of renvoi, Article 18 public policy, Article 19 exclusion of fiscal matters, Article 20 right to extend convention to other types of trust, Article 21 right to restrict recognition to trusts governed by the law of a contracting state, Article 22 time-frame of the Convention, Article 23 states consisting of several territorial units, Article 24 application of convention between territorial units of state, Article 25 relationship to other international conventions, Article 26 reservations to the Convention's scope, Article 27 accession of member states, Article 28 accession of non-member states, Article 29 application of the Convention to selected territorial units of a state, Article 30 entry into force, Article 31 denouncing the Convention, Article 32 notification process.