Professional Documents
Culture Documents
Background
The applicable law
The scope of the applicable law
Severance
Recognition
States parties
References
External links
Background
Many states do not have a developed law of trusts, or the principles differ significantly between
states. It was therefore necessary for the Hague Convention to define a trust to indicate the
range of legal transactions regulated by the Convention and, perhaps more significantly, the
range of applications not regulated. The definition offered in Article 2 is:
...the legal relationship created, inter vivos or on death, by a person, the settlor, when
assets have been placed under the control of a trustee for the benefit of a beneficiary or
for a specified purpose.
A trust has the following characteristics:
(a) the assets constitute a separate fund and are not a part of the trustee's own
estate;
(b) title to the trust assets stands in the name of the trustee or in the name of
another person on behalf of the trustee;
(c) the trustee has the power and the duty, in respect of which he is accountable, to
manage, employ or dispose of the assets in accordance with the terms of the trust
and the special duties imposed upon him by law. The reservation by the settlor of
certain rights and powers, and the fact that the trustee may himself have rights as a
beneficiary, are not necessarily inconsistent with the existence of a trust.
Article 3 provides that the Convention only applies to express trusts created voluntarily and
evidenced in writing. It will therefore not cover oral trusts, resulting trusts, constructive trusts,
statutory trusts or trusts created by judicial order. But signatory states are free to apply the
Convention to any form of trust. There are incidental question problems if the trust is
testamentary and, under Article 4, if it is alleged that the testator lacked capacity, or that the
will is formally or substantively invalid, or that it had been revoked, these issues must be
determined first under the lex fori Conflict rules on characterisation and choice of law before
the Convention rules can apply. This will include, for example, a detailed consideration of any
marriage settlement or applicable law containing community property provisions which might
prevent the testator alienating property from a spouse or child of the family (see succession
(conflict)). Obviously, if the will purporting to create the trust is held invalid, there are no
trusts to adjudicate upon.
The applicable law
Article 6 allows the settlor to select the applicable law in the inter vivos or testamentary
document. Under normal circumstances, the settlor will be acting on professional advice and
will make an express selection or it will be implied from the facts of the case. But, under
Actable 6(2), if the settlor selects a law with no relevant provisions or the provisions in the
municipal law selected would be inappropriate, or there is no selection, Article 7 applies to
select the law which is most closely connected with the transaction. This is judged by reference
to four alternative connecting factors which are to be considered as at the time the putative
trust is created:
Despite the identification of these four factors, the court must actually perform a rounded
evaluation of all the circumstances. Thus, it would be relevant to consider the distribution of
the assets if in separate states, the purpose of the trust (which might be the evasion of taxation
or other provisions in some of the states where the assets are located), the lex domicilii or lex
patriae of the settlor and the beneficiaries (particularly if the legal transaction is a marriage
settlement or testamentary), the legal form of the document, and the law of the place where the
document was executed (this latter factor may either be accidental and so of marginal value, or
contrived to take advantage of a favourable law and so highly significant).
Under Article 8, the law specified by Article 6 or 7 shall govern the validity of the trust, its
construction, its effects, and the administration of the trust. In particular that law shall govern:
(a) the appointment, resignation and removal of trustees, the capacity to act as a trustee,
and the devolution of the office of trustee;
(b) the rights and duties of trustees among themselves;
(c) the right of trustees to delegate in whole or in part the discharge of their duties or the
exercise of their powers;
(d) the power of trustees to administer or to dispose of trust assets , to create security
interests in the trust assets, or to acquire new assets;
(e) the powers of investment of trustees;
(f) restrictions upon the duration of the trust, and upon the power to accumulate the
income of the trust;
(g) the relationships between the trustees and the beneficiaries including the personal
liability of the trustees to the beneficiaries;
(h) the variation of termination of the trust (because variation is expressly within the
scope of the Applicable Law, this may be a significant factor in any issue of forum non
conveniens raised if an application to vary is made to a forum other than a forum of the
Applicable Law);
(i) the distribution of the trust assets;
(j) the duty of trustees to account for their administration.
Severance
Articles 9 and 10 allow the Applicable Law by which the validity of the trust has been
established, to sever aspects of the trust and its administration so that separate laws shall apply
to each component. In fact, the settlor may expressly select an Applicable Law for each
component and the forum court should respect his or her wishes. But, in general terms, it is
desirable that a single law should be applied to the administration and the fact that there may
be assets located in separate states should not, per se, justify severing the trust. The relevant
lex situs can be applied to micromanage the asset(s) by the trustee(s) without having to apply
the situs law to the administration of the trust in that state. Equally, this is not an argument for
a judicial approach which favours the law of the place of administration as the Applicable Law.
Although the administration must comply with the municipal laws for general purposes, the
duty to honour the intentions of the settlor may make the law of the place where the most
significant part of that intention is to be realised the most significant single law.
Recognition
Under Article 11, a trust complying with the Applicable Law shall be recognised as a trust which
implies, as a minimum, that the trust property constitutes a separate fund, that the trustee may
sue and be sued in his capacity as trustee, and that he or she may appear or act in this capacity
before a notary or any person acting in an official capacity. In so far as the law applicable to the
trust requires or provides, this recognition implies in particular:
(a) that personal creditors of the trustee shall have no recourse against the trust assets;
(b) that the trust assets shall not form part of the trustee's estate upon his insolvency or
bankruptcy;
(c) that the trust assets shall not form part of the matrimonial property of the trustee or his
spouse nor part of the trustee's estate upon his death;
(d) that the trust assets may be recovered when the trustee, in breach of trust, has
mingled trust assets with his own property or has alienated trust assets.
However, the rights and obligations of any third party holder of the assets shall remain subject
to the law determined by the choice of law rules of the lex fori. Thus, although the Convention
makes provision for the trustee(s) and any third parties, it fails to address the position of the
beneficiaries who, for example, might wish to pursue assets intermixed with the trustee's
personal property through actions for tracing. One of the problems that beneficiaries might
encounter is addressed in Article 12 which considers the problem where the situs law does not
have a title registration system which reflects ownership registration in a representative
capacity. While recognising that the Convention cannot require states to modify their existing
registers, it provides that the trustee shall be entitled, in so far as this is not prohibited by or
inconsistent with the law of the State where registration is sought, to do so in his capacity as
trustee or in such other way that the existence of the trust is disclosed. This implicitly
recognises the desirability of all registration systems distinguishing between beneficial and
representative titles.
This general difficulty of municipal laws failure to support trusts is addressed in Article 13,
which considers the situation of those who wish to create a trust but can only do so by invoking
laws entirely outside their own state. As an application of comity, no forum state is bound to
recognise a trust the significant elements of which, except for the choice of the applicable law,
the place of administration and the habitual residence of the trustee, are more closely
connected with States which do not have the institution of the trust or the category of trust
involved. But, because this could be interpreted as an invitation not to validate otherwise
perfectly appropriate financial arrangements for deserving beneficiaries, Article 14 provides
that the Convention shall not prevent the application of rules of law more favourable to the
recognition of trusts. This reflects the positive rules of public policy which require that the
validity of a transaction (whether commercial or not) be upheld if at all possible where this will
give effect to the reasonable expectations of the parties. The only exceptions shall be where this
will produce consequences offending against the mandatory policies of the forum court in
which case Article 18 empowers the court to deny the Applicable Law, even if it has been
expressly selected by the settlor. But Article 15(2) nevertheless requires the forum court to
consider adopting an approach that will preserve the overall validity of the trust insofar as that
generality does not offend against the mandatory policy.
States parties
As of September 2017, 14 countries have ratified the convention:[1] Australia, Cyprus, Canada
As of September 2017, 14 countries have ratified the convention:[1] Australia, Cyprus, Canada
(8 provinces only), China (Hong Kong only), Italy, Luxembourg, Liechtenstein, Malta, Monaco,
the Netherlands (European territory only), Panama, San Marino, Switzerland and United
Kingdom (including 12 dependent territories/crown dependencies).
References
1. "Status table" (http://www.hcch.net/index_en.php?act=conventions.status&cid=59). Hague
Conference on Private International Law. Retrieved 6 March 2011.
External links
Text of the Convention (http://www.hcch.net/index_en.php?act=conventions.text&cid=59),
Hague Conference on International Private Law
Status of ratification and signatories (http://www.hcch.net/index_en.php?act=conventions.st
atus&cid=59), Hague Conference on International Private Law
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