Introduction

The 2007 World Trust Survey continues to present basic factsupon the law and practice of trusts in the main trust jurisdictionsand a selection of other countries where trusts exist. In the last year there have been numerous interesting developmentsand this     

Use of trusts by Eastern European clients: practical issues

In order to get a more sophisticated understanding of the useof trusts by the clients from Eastern Europe (primarily fromRussia), it is worthwhile describing the procedure for settingup a trust with a typical representative of the ‘new wave’Eastern European business; painting a collective portrait ofRussian businessmen in 2007, and identifying the most commontypes, their specific features and the possible difficultiesof working with this sort of client. This modest unsystematicreview will help trust professionals to break through a cultureshock produced by the contact with a recent extraterrestrial,and now a demanding client. This article provides an insightinto most frequent queries and examines psychological aspectsof behavior, business practice and, if possible, to dispersestereotypes.     

论诉讼信托和讨债信托的效力——探讨《信托法》第11条第4项

我国《信托法》第11条第4项规定,专以诉讼或者讨债为目的设立的信托无效。然而,该条文是对日本《信托法》移植的结果,我国并没有禁止诉讼信托和讨债信托的理由。同时,该条文容易被规避且难以被认定,在司法实践中缺乏适用的空间。再者,该条文不仅与我国现行的诸多法律条文和制度产生冲突,而且与我国减少社会不良资产和增强我国公民法律意识、维权意识的目的相违背,故应当删除。事实上,诉讼信托和讨债信托不仅符合信托设立的要求,而且能使债权人、债务人受益,并起到减少讼累等有利效果,因此,应当承认诉讼信托和讨债信托在我国的合法地位。     

Indemnification or fetter?

ATC took over from Rothschild as trustee to two trusts but Rothschild'srefused to relinquish the trust assets to ATC until an indemnityto its satisfaction had been provided by ATC. Because of animpasse being reached between the two trustees, ATC appliedto the Grand Court of the Cayman Islands for the court's opinionon the true construction of the trust deed. The problem came about because ATC made a reasonable pre-estimateof the liabilities, which could arise to Rothschild and offeredto undertake that ATC would withhold a certain sum of moneyand not allow the trusts funds to be depleted below that amountfor a specified period. The details of this were to be agreed.However, Rothschild said they were unable to agree to this course     

Trusts in American law and some of their substitutes in Spanish law: Introduction and Part I

This article describes how trusts are used in American law andhow Spanish law provides similar facilities for investors. Thearticle is in two parts. The first part examines, from a USpoint of view, the principal uses of trusts and the second partwill describe aspects of Spanish law that provide similar facilitiesfor investors before concluding that none of the tools availablein Spanish law fulfil all the functions of trusts and that theintroduction of a trust law into Spanish law would not be simple.     

Marr v Collie: The Ballooning of the Common Intention Constructive Trust

The decision in Marr v Collie represents a significant expansion of the common intention constructive trust doctrine. Unsupported by authority, it relaxes the requirement that the property be acquired for a ‘domestic’ purpose, and widens the doctrine to encompass all property, whether real or personal. The decision's abrogation of the ‘purpose’ restriction redraws the line between the common intention constructive trust doctrine and the presumed resulting trust doctrine and expands the former to the greatest possible extent. This exacerbates a doctrine already apt to adversely affect both individual litigants and the justice system as a whole, and which creates incongruous theoretical divisions within the law of intentionally created trusts. As the doctrine is reliant on the proposition, unsupported by authority or legislation, that conveyance of a title to land into joint names necessarily gives rise to a trust, it is hoped that a future apex court will reconsider the doctrine's proper scope.     

论商业信托法律主体地位的确定

商业信托是商事信托的一种具体形式,商业信托具有偿性、组织性及财产独立性等法律特征。赋予商业信托法律主体地位实际上是国家立法政策及价值选择问题,在理论上不存在障碍。美国的成文法商业信托取得完全的法律主体地位是一个长期的历史选择。随着商业信托在中国越来越多地被应用,应当逐步规定商业信托的法律主体地位,这有助于解决商业信托领域中存在的信托财产所有权、受托人有限责任、商业信托正确设立等方面存在的一些理论与实践问题。     

Trusts in American law and some of their substitutes in Spanish law: Part II

The first part of this article examined, from a US point ofview, the principal uses of trusts and now this second partdescribes aspects of Spanish law which provide similar facilitiesfor investors, before concluding that none of the tools availablein Spanish law fulfil all the functions of trusts and that theintroduction of a trust law into Spanish law would not be simple.     

The emergence of the Islamic trust

The Islamic trust, governed by both the laws of the jurisdictionunder which it is written and by Shari'ah law, has become apopular financial and devolution planning vehicle for assetsheld by Muslims. This article examines how these trusts havedeveloped.     

不动产物权登记立法研究

我国物权登记立法应确立登记行为私法观念 ,建立统一、独立、以服务于交易安全为任务的登记机关、登记赔偿制度、异议登记制度等 ;确立物权行为独立性与无因基础上的实质审议主义 ,公开登记薄以确立公示与公信原则 ;确立嘱托登记、宣告登记、公有物登记、区分建筑物登记、预告登记等登记种类     

Public Trusts

Public, as distinct from charitable, trusts were authoritatively recognised in 1827, when the House of Lords determined that the permanent basis of equitable jurisdiction protected 'public money' from unlawful application, on the same basis as charitable funds were protected. These trusts made the relevant public functionaries subject to equitable remedies, but the remedies were displaced from equitable practice by jurisdictional fusion and by administrative audit surcharges. In the twentieth century they survived unrecognised in the ambiguously phrased 'local authority fiduciary duty to ratepayers'. Recently, public trusts have again been implicitly acknowledged, and the distinctive remedy of personal liability to make good loss arising from misapplication has been applied. However the right to litigate is confined to current fund-holders in fulfilment of their protective trust duty and to the Attorney General in the general public interest in countering unlawful appropriations of public money.     

Going to the dogs?

Corporate trustees administer assets worth billions and directorsof these trusts expect to carry on their work without fear ofpersonal liability to beneficiaries other than in exceptionalcases whose ambit is limited and well understood. The emergence in recent years of an action known as the ‘dog-leg’claim threatens this certainty. The claim is brought by beneficiariesfor breach of trust generally, directly against the trustees,where none of the usual grounds for personal liability is evenalleged. The claim relies on being able to prove that the corporate trustee'srights against directors for breach of director's duties areheld by the trustee not for its own benefit, but for the benefitof the trust. This article explains how the claims are put togetherand why, fortunately, in practice they will rarely (if ever)succeed. The recent case of Alhamrani v Alhamrani has stimulatedthis appraisal.     

The trust in Spanish and Italian private international law: Part I

Civil Law jurisdictions' recognition of trusts depends on theindividual conflict of law rules of each jurisdiction. The HagueConvention on the Recognition and Enforcement of Trusts intendsto bring a degree of certainty into how a foreign trust is received.However, the matter is complicated, in particular, as to thestatus granted in each jurisdiction to the convention. Thisarticle, based on a paper presented at the convention on CatalanCivil Law, ‘Los patrimonios fiduciarios y el trust’,held in Tarragona on 20 and 21 October 2005, examines the positionof trusts under the conflict of law rules in Italy and in Spainand the impact made on the recognition of trusts by the HagueConvention. This article appears in two parts; in this firstpart the position in Italy is examined and the second part concludeswith the position in Spain.     

Wills,Trusts and Trusting from the Statute of Uses to Lord Nottingham

Medieval feoffments to the uses of a last will provided, in effect, a power to devise freehold land, otherwise generally impossible at common law. The Statute of Uses 1536 put an end to this mechanism, and in 1540 the Statute of Wills provided, within limits, a substitute power to devise. But conveyances inter vivos upon trust for the performance of wills continued to be made after 1540; and the distinction in practice between such trusts and wills was less clear than might be supposed: wills under the statutory power were understood as conveyances; executors were frequently trustees in a narrow sense; and the perception that executors were, in a broader sense, trusted, had substantive effects. In understanding wills, trusts and trusting after the Statute of Uses, distinctions between those who are ‘trustees’ and those who are not, or between conveyances upon trust and wills, may be an essential starting-point in bringing order to the sources, but cannot fully reflect the complexity of contemporary arrangements.     

Trusts for Religious Purposes and the Question of Public Benefit

It is a well‐established principle that no trust may be regarded as charitable in law unless carrying out its purposes will benefit the public. Trusts for religious purposes have traditionally been presumed by courts to be for the public benefit. However, the presumption of public benefit will be removed from the law in early 2008 when section 3(2) of the Charities Act 2006 comes into force. At that time, two questions are likely to attract interest. First, to what extent, and in what ways, has the application of a presumption of public benefit assisted courts up to now? Secondly, without the assistance of the presumption, how might courts go about ascertaining whether the public will benefit in future cases? The article takes up these two questions with respect to trusts for religious purposes.     

论民事抗诉监督的信任保证

民事抗诉监督对司法公信力的修补,应当处理好四个方面的辨证统一关系:监督与信任的关系、既判力与再审的关系、实体判断与程序监督的关系、依存性信任与主体性信任的关系.现行宪政框架中我国检察机关的民事抗诉监督,试图通过三种渠道对司法公信力进行修补,即:再审抗诉的不得拒绝、审判监督前置对再审案件的过滤、提高一级的"上抗上审".<民事诉讼法>修正案对此进行了有益的改革,但个别规定还需进一步论证和完善.     

Editorial

The changes to the UK tax rules on residence and domicile havebeen well publicized. Amongst other things, the new legislationremoves the shelter from capital gains tax which was previouslyprovided to UK non-domiciled individuals who benefited froman offshore trust. Some of the harsher (and more retrospective) aspects of thedraft legislation published in January have since been tempered.Offshore trusts will still have a role in planning for non-domiciliaries,not least because significant inheritance tax advantages remain.However, the way in which the process has been managed by theGovernment and HM Revenue & Customs leaves trustees andadvisers (still getting to grips with the 2006 changes to thetaxation of trusts) with little confidence that