Private international law issues in the law of trust

Abstract

The aim of this thesis is to examine the private international law obstacles arising/issues in a case involving trusts. This means that the particular case involving trusts must also include a foreign element and in such cases, the lex fori must go through certain procedures in order to decide the particular case. This thesis commences with an introductory chapter including the various definitions of a trust and the discussion of the common law trust developed into civil law jurisdictions, particularly in the Maltese system through the introduction of fiduciary obligations in the Civil Code. This chapter gives a brief overview of private international law issues in general and goes into detail on the preliminary issues of choice of law falling outside the Hague Convention and which are determined once the forum court has decided that it has jurisdiction to hear and determine the case at hand. The second chapter deals with one of the most, or the most important private international law question concerning jurisdiction of the court seized with a case involving a foreign element and a trust relationship. This chapter includes the relevant articles relating to trusts of Council Regulation 44/2001 applying to cases involving Member States of the European Union, as well as Maltese law under Article 742 of the Code of Organisation and Civil Procedure and more specifically to trusts, Article 8 of the Trusts and Trustees Act, both applying when a particular case falls outside the scope of Council Regulation 44/2001. The third chapter deals with another crucial and vital private international law question relating to the choice of law which leads to the applicable law or governing law to be applied to the case at hand. Therefore this chapter goes into detail with regards to the articles of the Hague Convention as ratified and attached to the Trusts and Trustees Act. Significant examination of the express and implied choice of law rules as well as the governing law in the case of absence of such express and implied choice of law is made. The fourth chapter delves into the limits to the application of the governing law as provided under the Hague Convention and the recognition of trusts falling within the scope of the Hague Convention, the latter being the second main function of the Hague Convention. This chapter also deals with the recognition and enforcement of foreign judgements under Council Regulation 44/2001 as distinguished from recognition provided under the Hague Convention. The conclusion provides the reader with the question as to whether such European and International movements towards the harmonization of private international law issues relating to trusts have simplified or further complicated the private international law process in cases involving a trust relationship.