Trusts in Civil Law Jurisdictions : a comparative analysis with particular reference to the Hague Convention

Abstract

Tile First Part of this study aims at explaining the nature of the trust and the divergences which it creates when it is utilized within a civil law scenario. Chapter One deals with the evolution of the trust wit/tin the common law sphere and tire meaning attributed to it within the context of the Hague Trusts Convention. Reference is made to the Maltese position when dealing with the rights and obligations of the parties to the trust, the settlor, the beneficiary and most significantly, the trustee. The problems encountered by civilians when employing the trust concept are given importance in the light of the multiple analogous institutions which have been devised, to compensate for the deficiency of the trust concept within the civil field. Particular regard shall be given, in this primary discussion, to the historical alliances of the trust concept and to the fideicommission which has been incessantly referred to as the Roman law trust. This initial consideration is essentially aimed at providing insights into the common law world of the trust as against the civil law rooted concepts. Part Two is wholly dedicated to the Hague Trusts Convention, and consequently, the international recognition of trusts. The aims, purposes as well as the problems encountered by the Conference in drafting this legislation shall be given particular regard in Chapter Two. Hence a detailed examination of the Articles will help in showing the underlying intentions of the Convention, namely to create an alliance between the two major opposing forces in tire field of trusts, that is, the civil and the common law world. The interpretation and the literature versed with regard to such work shall be given particular consideration due to the amount of controversy which hovers over the creation of such Convention. Chapter Three refers to the merits and demerits of the Convention and basically aims at illustrating the flaws of this work and the consequences which might result when a jurisdiction opts for ratification. Particular importance is given to the Convention in view of the fact that Malta, following the United Kingdom, has ratified the Convention through specific legislation which has, however, excluded certain Articles. Part Three of this study may be described as the examination of a potpourri of jurisdictions which have adopted tire trust or some other very similar device. Chapter Four explores the so called pure civil law jurisdictions, which have the trust device in their system, notwithstanding the clear civil law indigenous character of their legal systems. Consequently, Chapter Five delves into a detailed study of the limited number of decisions obtainable in the civil law field with regard to trusts. Most of these judgments will reveal that the majority of the civil law jurisdictions turn to their civil roots when dealing with this concept, and as a result tire the nature and effects of this institution are lost in the midst of public policy and mandatory rules. In Chapter Six the obtaining position of a selected number of Roman Dutch jurisdictions is investigated. Such jurisdictions, not being purely civil have had strong common law influences and have accordingly developed the trust concept almost naturally into their systems. A similar comparative analysis is given in Chapter Seven in the light of offshore trust jurisdictions which are dominating the financial world. The drafting of trust legislation in these mixed systems will provide an interesting piece of study for the trust comparativist because such jurisdictions have almost succeeded in sealing this institution from their domestic laws which are of a civil character. Recent decisions will be examined to depict the obtaining scenario in this sphere of law and the problems encountered by the Courts of such havens when adoperating the sophisticated legislation which has been enacted within these shores. The Maltese standpoint will be examined in detail with particular reference to the existing legislation in the sphere of trusts in Chapter Eight. Particular regard shall be had to the Trusts Act of 1988 and the amendments effected recently in order to ensure greater flexibility in the financial sphere. As shall be seen the Maltese attempt in this field is geared towards tire uniformity of the concept with tile common law counterpart, which is almost achieved. The Recognition of Trusts Act of 1994 will also be examined in the light of Maltese jurisprudence and its possible usage in the Maltese private international law sphere. Ill concluding, this study purports to show that the concept of the trust may occupy a vital role in tire civil law sphere, in so far as it is limited to specific purposes.