A Swiss View of Channel Island Trusts. Prof. Luc Thévenoz

Transcription

1 A Swiss View of Channel Island Trusts Prof. Luc Thévenoz

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3 Relative size of financial services in the economy Jersey + Guernsey Switzerland GDP 4.4 bn 385 bn Financial services % GDP 40.5% 10.5% Workforce 89,000 3,400,000 Financial services % employment 22% 6% Financial Secrecy Index ( Jersey: 78 Guernsey: 65 78

4 Swiss View of Channel Island Trusts Soft spot Unavoidable tensions Concerns

5 Soft spot Practical reasons Location European-ness without EU Multi-office trust companies

6 Soft spot Legal reasons 1/2 Statutory codification Regular upgrades No (explicit) recourse to equitable concepts Complex notions boiled down to provisions understandable by civil lawyers

7 OD Bank in liquidation (1994) WK Rey was settlor and beneficiary of a Guernsey trust over the two holding companies through which he controlled his empire Rey s personal creditors seek to have the shares of the two holding companies included in his estate in bankruptcy The District Court of Zurich - applied Guernsey law in accordance with the terms of the trust found that Rey never wanted to release control over the assets and implement the trust followed Rahman v Chase Bank (CI) Trust Co. Ltd. (Jersey 1990) and declares the trust to be a sham

8 Soft spot Legal reasons 2/2 Trustee regulation: Channel Islands as possible models Small opening for arbitration of trust disputes See Trusts (Guernsey) Law, s63 (7) - terms of a trust may subject claims against trustee for breach of trust to arbitration - award binding on all beneficiaries if represented in or notified of the proceedings

9 Tensions Traditional conflict of laws Trust Marital property Estate

10 Tensions Trusts, marital property, and heirship rights Trust rules of conflict Marital property Estate

11 Unavoidable tensions Traditional conflict of laws Art. 15(1) of the Hague Trusts Convention The Convention does not prevent the application of provisions of the law designated by the conflicts rules of the forum, in so far as those provisions cannot be derogated from by voluntary act, relating in particular to the following matters a) the protection of minors and incapable parties; b) the personal and proprietary effects of marriage; c) succession rights, testate and intestate, especially the indefeasible shares of spouses and relatives; d) the transfer of title to property and security interests in property; e) the protection of creditors in matters of insolvency; f) the protection, in other respects, of third parties acting in good faith.

12 Art 9 TJL Trust law as fortress against certain claims? The validity of a trust or of any disposition of property to a trust [sic] shall be determined without consideration of whether or not the trust or disposition avoids or defeats rights, claims, or interests conferred by any foreign law upon any person by reason of a personal relationship to the settlor or by way of heirship rights. Art 9(2) is a rule of conflict will only apply when Jersey is the forum, except if the forum accepts renvoi

13 Unavoidable tensions - Summary The Hague Trusts Convention does not provide a uniform solution to such conflicts of laws it only determines the law governing the trust Whether a court will disregard the effects of a (valid) trust to enforce rights mandated by some non-trust provision of law ultimately depends on the conflict rules of the forum But the court where enforcement is sought (location of trust assets or personal jurisdiction over trustee) has the final say; see Art 9(4) TJL; 16(4) TGL

14 Concerns A forward looking assessment of offshore trusts In many litigations before civil courts, one of the party wants to disregard the existence or effects of a trust Silver bullet civil lawyers love for sham trusts

15 AX and BX v C (Federal Tribunal, 12 April 2012) Deceased s daughters seek the return of funds paid by the trustee to the mistress of the deceased at his wishes A trust is a sham when it is used artificially by the settlor, such as when he retains all powers over the assets in trust, which he intends to recover in the end. Such a trust is a nullity in accordance with the maxim he who comes to equity must come with clean hands. A sham trust cannot be recognised in Switzerland since it is null under law governing the trust. No serious discussion of the conditions for a sham trust under applicable law (BVI); accepted on the basis of a legal opinion by an English barrister

16 Three areas of concern Reserved powers; when is a settlor-controlled trust a mere instrumentality? - Art 9A(2) TJL and 15(1) TGL, particularly (c), (d) and (h) Trusts without a perpetuity period Non-charitable purpose trusts

17 Rybolovlev v Rybolovleva (Federal Tribunal, 26 April 2012) Worldwide freezing order in divorce proceedings - extends to assets of two Cyprus trusts Highest court considers that piercing the veil (trusts and underlying companies) is not arbitrary because trusts are mere instrumentalities of Rybolovlev who - settled the trust two months after wife rejected a postnuptial agreement - is protector and main beneficiary, along with two daughters - retains all powers in respect of designated companies held by trustee Piercing the veil based on Swiss doctrine of manifest abuse of a right ; Hague Trust Convention not considered

18 Conclusion Developments of offshore trust laws allowing most extensive control by settlors perpetual settlements, and non-charitable purpose trusts Increase the risk that Swiss (and other civil law) civil courts will disregard entirely the existence of such trusts as sham by piercing the veil or based on public policy This is far worse than allowing the claw back of certain trust assets based on mandatory provisions of the laws governing the settlors bankruptcy, marital property, or estate