THE INTERNATIONAL TRUST

Transcription

1 THE INTERNATIONAL TRUST Edited by John Glasson, MA, LLM Solicitor, Consultant to Eversheds and Stuart Smalley & Co LLC, and Editor of International Trust haws uj O R D A N S 2002

2 Contents Preface v Table of Cases xi Table of National Legislation xlvii Table of Conventions and EC Material kxv Editor's Introduction The phenomenon of the international trust John Glasson 1 PART 1 Chapter 1 TRUSTS AND THE CONFLICT OF LAWS Jurisdiction and the enforcement of foreign judgments in transnational trusts liügation Jonathan Harris Chapter 2 Introduction Jurisdiction under the European regime Jurisdiction at common law Reverse forum Shopping Interim relief Recognition and enforcement of foreign judgments Arbitration Jurisdiction and enforcement of foreign judgments in offshore states Conclusion Launching the rocket - capacity and the creation of inter vivos transnational trusts Jonathan Harris 2.1 Introduction What is excluded from the Hague Convention? What is capacity? The choice of law rule for capacity questions The vesting of property in the trustee

3 viii The International Trust 2.6 Capacity and the transfer of property in offshore jurisdictions Conclusion and tactical observation 118 Chapter 3 International recognition of trusts David Hajton 3.1 The background problems The Hague Convention Where Trusts Convention inapplicable 136 PART 2 Chapter 4 SPECIFIC ISSUES Forced heirship and the trust Anthony Duckworth 4.1 Introduction Succession rights The trust Survivability in general Survivability in England Survivability in offshore centres Survivability in other states Survivability in future the Conventions Planning notes The trustee 222 Chapter 5 Protectors Robert Harn QC, Emilj Campbell, Michael Tennet 5.1 Introduction Duties of protector under English law Duties of protector: case-law from other jurisdictions Control of protector Protectors' indemnities and exoneration 235 Chapter 6 Purpose trusts Geraint Thomas 6.1 Introduction England and Wales The Bahamas Belize Bermuda The British Virgin Islands The Cayman Islands The Cook Islands Cyprus ThelsleofMan Jersey Labuan 329

4 Contents Chapter 7 Chapter 8 Chapter 9 Asset protection trusts Geraint Thomas 7.1 Introduction England and Wales Foreign jurisdictions 411 Trading trusts David Hayton 8.1 What is a trading trust? Trading trust structures Dominant tax considerations Trustee's personal liability Trustee's right of indemnity Creditor's rights of Subrogation Bankruptcy or winding up of trustee Position ofdirectors ofcorporate trustee Giving security over trust assets Precautions for creditors especially lenders 492 Payment by trustees of foreign taxes Christopher Slj and John Glasson 9.1 Introduction The narure of the non-enforceability rule Limitations on the scope of the rule Circumstances in which trustees can, or should, provide funds to discharge a non-enforceable foreign tax Express powers to pay foreign taxes 514 Chapter 10 Disclosure by trustees Emily Campbell 10.1 Introduction Juridical basis What information must the trustees disclose? Who is entitled to information concerning the trust? Defences to disclosure Disclosure pursuant to procedural rules of the court Specific statutory provisions 526 Chapter 11 Retention of powers by settlor Wolfe D Goodman QC 11.1 Introduction The trust is merely a sham The trust is a testamentary disposition The rights reserved to the settlor preclude its recognition as a trust 536

5 x The International Trust PART 3 THE CIVIL LAW PERSPECTIVE Chapter 12 Switzerland Alfred E von Overbeck 12.1 Introduction 12.2 Foreign trusts in Switzerland 12.3 Should trusts be introduced into Swiss Substantive law? 12.4 Some Swiss institutions fulfilling functions comparable to those of trusts 12.5 Taxation Chapter 13 Italy Ferdinando Albisinni and Regina Gambino PART 4 Introduction Traditional approaches The role oißducia An Illustration of Separation of assets under existing law the patrimonial fund Contacts between the trust and the Italian legal System The Hague Convention on Trusts Recently proposed legislation Trends Chapter 14 The future of the trust from a worldwide perspective Donovan Waters QC 14.1 Introduction The trust idea in the Commonwealth: transition and controversy Uses of the common law trust concept Emergence of the mainland private client tax-planned trust Turbulence in the offshores The civil law and the trust idea The common law trust The direction of the trust idea in the Coming years Conclusion 638 APPENDIX Index The Hague Convention on the Law Applicable to Trusts and on their Recognition