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.     

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     

现代商事信托的组织法基础

从民事信托到商事信托,信托关系的本质完成了从财产无偿移转的手段到企业组织架构的变革。商事信托作为组织法,其具有商事组织的典型共性,而且在制度设计和受托人信义义务的标准上,商事信托也与商事公司制度近年来出现了明显的趋同。我国现行信托立法无论是在受托人承担有限责任的规定上,还是在信托投资的规模上以及在受托人的资格取得上,都离成熟的组织法的要求还都相距甚远。     

... and then 25 years later

What started off in 1982 as a quiet family trust, 25 years laterhas turned out to be rather a cause célèbre. Atleast it might become so if the full report of a recent caseis as disturbing as the brief report which appeared in the Timeson 12 February 2007. Inadvertent distress and expense all roundwas caused where it appears that the settlors of a family trust,in 1982, purported to resign as trustees and appointed the InvestmentBank of Ireland (IOM) Ltd and an individual to be, interestingly,as the Times describes each as the sole trustees. Interestinglyboth were resident overseas. Presumably, there were tax planningmotives behind making the trustees resident outside the UK taxjurisdiction. It all went wrong and ended up with five beneficiaries and,the two more recently     

Fit and proper

The current trend of regulation in international financial mattersof service providers and trustees is an inevitable consequenceof trustees of international trusts being remote from the settlorand the beneficiaries. The ‘fit and proper’ persons'requirement for international trust companies, and others, properlyaddresses the need for international investors’ assetsto be in the hands of those properly experienced and qualified.The success depends upon how this ‘fit and proper’criteria is defined and monitored by the regulator in each jurisdiction. In most international jurisdictions,     

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.     

Hostile claims by beneficiaries--the burden of costs: Close Trustees (Switzerland) SA v Vildosola

Trustees were incurring significant costs in defending hostileproceedings brought against them by the life tenant of the trust.To ensure that they would ultimately be able to reimburse themselvesout of income, the trustees proposed to retain part of futureincome to form reserve fund, but the Court was not preparedto sanction that proposal. The most significant aspect of thiscase was the Court's analysis of what principles might ultimatelybe applied to determine whether income or capital would bearthe costs of indemnifying the trustees.     

Directions, variation, and rectification--solutions for trustees and beneficiaries under British Virgin Islands law

This article considers the appropriate steps for trustees andbeneficiaries to take where the terms of their BVI trust areunclear, require amendment, or have unintended consequences.It is an essentially practical piece that provides a startingpoint for practitioners who find that their BVI trust (for whateverreason) requires the intervention of the Court.     

Parker's Modern Wills Precedents, 5th edn * By Michael Waterworth MA (Cantab)

Trusts set up by will, will trusts, are governed by similarconsiderations to those affecting inter vivos trusts. Frequentlyin trust textbooks the authors do not tell us that will trustshave some significant difference from inter vivos trusts. Thelatter may be set up quite informally by a mere declarationof intention and the transfer of the trust property to the trustees.But will trusts can only come about if the law relating to makinga valid will has been complied with. This tends to get overlookedunder the shadow of possible inheritance tax     

Property and the Interests of Things: The Case of the Donative Trust

Within a liberal, ‘law of things’ understanding of property, the donative trust is seen as a species of gift. Control over trust property passes from the hands of settlors to beneficiaries, from owners to owners. Trust property, like all other property, is silent and passive, its fate determined by its owners. This article questions this understanding of the trust by showing how beneath the facade of ownership, the trust inverts the relation between owner and owned, person and thing. It analyses the relation that trustees, beneficiaries and settlors have to the trust property and argues that the role of each of these parties can be shown to consist in furthering the interests of the trust property rather than their own. It claims that this protects things from their owners at the same time as it ensures these owners’ ongoing care towards the things they own. This raises questions about the trust’s status within the institution of private property, justified as it is by the human autonomy it is said to enable.

     

The Jersey approach to excluding trustee liability: a comparison with the Law Commission's proposals

This article considers how Jersey law regards trustee exemptionclauses, an important topic in a jurisdiction with a substantialand developed trust industry where most trustees are paid professionalswho are regulated by the Island's Financial Services Commission.     

论表决权信托

表决权信托作为获取公司控制权的一种重要手段 ,是美国公司法上比较活跃的制度。但是 ,它的命运经历了从否定到争议再到肯定的过程。表决权信托的成立要符合三个要件 ,即采取书面形式、不能超期并进行登记、公示。通过对表决权信托证书持有人及受托人权利和义务的分析 ,对表决权信托的构造进行了深入研究 ,并首重分析了事实上的虚假表决权信托。针对表决权信托的特性 ,我国应通过适当立法途径建立起相应的表决权信托制度。     

我国受托人权力制度之思考

与早期信托法制相比,英美现代信托的功能和信托法的价值取向已经发生很大变化,因而受托人权力也有了很大扩张。我国现行《信托法》受托人权力制度存在重义务轻权力之弊端,它缘于重安全轻效率的价值误区和重负面轻正面的认识误区。其建设方向是走出认识误区,更新价值观念;重视受托人地位,强化受托人权力;借鉴日韩经验,加大移植力度。     

Switzerland and the Hague Convention

Any suggestion that 2006 has been a quiet year in the internationaltrust world is likely to be quickly denied. Of course, the worldof international trusts never stops changing. A popular conferencetopic is ‘Challenges of the trust today’ or a similartitle which calls upon the speaker to present his views on whatis happening preferably with some crystal ball gazing of impendinglegislation. The source of change offers ample opportunity for discourse.First, case law produces its finely ground decisions to resolveindividual disputes laying down jurisprudence for future settlorsand their advisers to follow. Sometimes it is favourable. Therecent re-adoption and expansion of the Hastings-Bass principle(Re Hastings-Bass (Dec’d), Hastings v IRC [1974] 2 AllER 193), whereby trustees may make good an oversight, has beenfavourable to trustees, provided (naturally) liberties werenot taken with the rules.     

Trustees: how exclusive are you?

There has been an important recent development for trusteesin relation to the general position on clauses which seek toexclude or restrict a trustee's liability for failure to carryout properly their duties imposed by the trust instrument orlaw¹. Such clauses, known as Trustee Exemption Clauses, canbe a complete defence, or at least a deterrent to claims inthe increasingly litigious environment in which trustees operate.This article examines the Law Commission's recommendations onexemption clauses applicable in England and Wales.     

信赖与信赖利益考

信赖是当事人相信要约或合同而为签订合同所导致的财产减少和与他人订约机会的丧失,信赖利益是对合同或要约赋予了信赖一方当事人所故有的,因信赖可能或已经受到损失的利益,对信赖利益的救济包括期待利益损害赔偿和信赖损害赔偿两种手段,且对信赖利益的损害赔偿不应以期待利益为限。     

国有资产授权经营法律结构分析

国有资产授权经营不同于国有资产的经营权或法人所有权。现行国有资产授权经营制度中的核心关系应当是信托法律关系。针对现行制度中的诸多不足,提出改革建议:完善受托人选任制度;建立受托人财产隔离制度和受托人破产隔离制度;确认公司和企业对其经营的国有资产的所有权,促使国家对国有资产的经营由实物控制转向价值形态控制;强化国有资产授权经营过程中的法律责任,特别是完善民事责任体系。     

The Bahamas: New legislation to accommodate private trust companies ('PTCs')

The existence of private trust companies in the jurisdictionhas, in recent years, become an important factor in attractingclients to that jurisdiction. Although private trust companiesare not a new idea, they have been frequently restricted tothose with a high minimum capital which has not made them worthwhilefor some trusts. The attraction of a PTC is that the settlor can establish hisown trustee as a separate legal person and thereby, probablyin conjunction with beneficiaries, enjoy more involvement inthe trust's administration. The representation of the settlorsand beneficiaries on the board of the directors of the PTC shouldavoid many of the conflicts which might arise between settlorsand beneficiaries and the trustees.     

Exceeding powers of appointment: Re the Toland Trust, the Pennywise Trust and the Sequential Trust [2005] JRC 142

The general intention of the Toland Trust, a discretionary settlementgoverned by the law of Jersey, was expressed in a letter ofwishes that the immediate family of the settlor should benefit.A general power of appointment was given to the trustees. Considerable capital gains