Journal articles on the topic 'Property trusts'
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1
Parkinson, Patrick. "RECONCEPTUALISING THE EXPRESS TRUST." Cambridge Law Journal 61, no. 3 (December 11, 2002): 657–83. http://dx.doi.org/10.1017/s0008197302001769.
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This article argues that the express trust should be understood as a species of obligation rather than as a means of organising the ownership of property. Two propositions seem fundamental to the traditional understanding of the trust as an aspect of property law. Firstly, in the nature of the trust, there must be a separation of legal and beneficial ownership. Secondly, there must be trust property. Neither is necessarily true. With many discretionary trusts and other recognised types of express trust it is impossible to locate the beneficial estate. Furthermore, the requirement for there to be trust property is, on closer analysis, a requirement of certainty of obligation in relation to specific subject-matter within which the trust property can be located.The article explores the implications of understanding the trust as a species of obligation. It allows all express trusts, including charitable trusts, to be explained as resting on the same fundamental concepts. The trust in the common law world may still be distinguished from contract and from the civil law forms of the trust. This new conceptualisation also illuminates what is the irreducible core content of the trust. The article concludes with a new definition of the express trust.
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Lee, Joyman. "The Nature of the Beneficiary’s Interest in English, Japanese and Quebec Trusts." European Review of Private Law 29, Issue 4 (September 1, 2021): 611–32. http://dx.doi.org/10.54648/erpl2021032.
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In the English trust, the beneficiary is viewed as the substantive owner of property held under trust, even as the trustee holds legal title to the property and is the only party who is able to perform the legal functions associated with ownership. In the mixed legal systems of Quebec and of Japan, the juristic pathways to the beneficiary’s substantive ownership are vastly different. In the case of Japan, arguably the ‘patrimony’ conception is applicable, whereas in Quebec the new ‘ownerless’ trust departed significantly from the problems associated with the trustee’s ‘ownership’ of property under the old trust. The article submits that the ability of the beneficiary to enforce his interests independently from other parties is crucial to the trust’s ability to achieve broadly similar effects to English law. From an English perspective, it is vital that civilian trusts recognize and accommodate the differences inherent in the beneficiary’s rights to due administration and to the economic enjoyment of property.
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Van Dyk, Herman, and Danie Calitz. "An Analysis Of The Risks Associated With Estate Duty In Retaining Control Over Trust Assets." Journal of Applied Business Research (JABR) 32, no. 5 (September 1, 2016): 1375. http://dx.doi.org/10.19030/jabr.v32i5.9766.
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The use of trusts to minimise estate duty and other taxes has recently come under scrutiny from government. The DTC has proposed amendments to income tax legislation to serve as a deterrent against using trusts to avoid estate duty. Such amendments will, however, only discourage the use of trusts if the trust assets generate a significant amount of income and the donor of the assets or the beneficiaries of the trust have little or no other taxable income.The objective of this paper is to identify the estate duty risks associated with retaining control over trust assets. It was concluded that trust assets are only at risk of being included as deemed property in the estate of a deceased person where such person had, immediately prior to death, the legal competence to dispose of such property for the benefit of himself or his estate and that the conduct of the planner was not a relevant consideration in determining whether trust assets could be deemed property. However, the conduct of the estate planner with respect to trust assets could potentially lead to the inclusion of the property as actual property in his estate, particularly in circumstances where the trust was his alter ego and trust property was treated as his own, where the trust arrangement is regarded as simulated or where there was no intention to create a trust.
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Nobles, Richard. "Pensions as property." Legal Studies 14, no. 3 (November 1994): 345–63. http://dx.doi.org/10.1111/j.1748-121x.1994.tb00508.x.
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The overwhelming majority of employees who are members of occupational pension schemes belong to what are called ‘defined benefit’ schemes. These schemes provide for their members to receive a benefit defined by reference to a member’s salary at the date of their retirement or, if they change jobs, the salary paid just prior to their leaving. This article examines the rights of the members of defined benefit schemes. In particular, it considers claims by scheme members that the pension funds which secure their pensions represent their deferred pay, and that these funds are, in some meaningful sense, their property. The article argues that whilst the law of trusts may appear at first sight to lend support to the members’ claims, developments within the law of trusts, coupled with the underlying contradiction in the meaning of ownership in trust law, has made it difficult for the courts to recognise the members’ claims.
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Peart, Nicola. "The Property (Relationships) Act 1976 and Trusts: Proposals for Reform." Victoria University of Wellington Law Review 47, no. 3 (November 1, 2016): 443. http://dx.doi.org/10.26686/vuwlr.v47i3.4792.
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Trusts often have the effect of undermining the social aims of the Property (Relationships) Act 1976. In the absence of legislative action, the courts have been sympathetic to a range of arguments aimed at accessing trust assets that would have been subject to division between the parties but for the trust. None of these judicial responses adequately addresses the current deficiencies of the Property (Relationships) Act or the potential detriment to trusts and their beneficiaries. This paper considers a range of potential reforms and argues that any reform should seek to strike a balance between the social aims of a relationship property regime and the right of owners to structure their property interests as they wish.
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Newell, Graeme, Ting Hwa, and Peter Acheampong. "Listed Property Trusts in Malaysia." Journal of Real Estate Literature 10, no. 1 (January 1, 2002): 109–18. http://dx.doi.org/10.1080/10835547.2002.12090104.
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Abdullah, Luqman, Nor Fahimah Mohd Razif, Muhammad Ikhlas Rosele, Abdul Karim Ali, and Noor Naemah Abdul Rahman. "Muslim’s trust property issues in Malaysia: A preliminary study." Journal of Emerging Economies and Islamic Research 7, no. 2 (May 31, 2019): 66. http://dx.doi.org/10.24191/jeeir.v7i2.8766.
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Wealth or property is an essential part of Muslim life whether it is related to religious affairs or life preservation. Therefore, the trust property management aspect should be emphasized in preserving the benefits of society, especially Muslims. For this reason, this study will review the management of Muslim property trusts in Malaysia and issues related to it. This study was conducted based on a qualitative approach in identifying issues that arose in the management of property trusts. The findings show that there are some issues especially in the management of zakat, waqf, bequeathal and inheritance have become polemic and debate in Malaysia. These issues need to be assessed and resolved from the perspective of Islamic law.
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Saksonov, Vladyslav, and Kostyantyn Romashchenko. "Legal structure “law of trusts” in the civil legislation of Ukraine." Naukovyy Visnyk Dnipropetrovs'kogo Derzhavnogo Universytetu Vnutrishnikh Sprav 2, no. 2 (June 3, 2020): 120–26. http://dx.doi.org/10.31733/2078-3566-2020-2-120-126.
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The article gives the legal characteristics of the newly introduced structure "law of trusts" in the civil legislation of Ukraine. The current status and possible prospects for the development of this legal institution in our state are clarified. In particular, the two-fold character of the legal nature and the ambiguity of the assessment of “law of trusts” were noted. Firstly, as a type (Article 546 of the Civil Code of Ukraine) and a method (Article 597 of the Civil Code of Ukraine) of guaranteeing the fulfillment of an obligation. Secondly, as a special type of property right (Article 316 of the Civil Code of Ukraine). Moreover, in all senses, the "law of trusts" causes numerous comments by specialists, which causes controversy and the necessity for further changes. The right of trust should be considered in a broad understanding of the significance of this legal phenomenon. It may include the transfer of property rights for the purpose of managing it in the interests of a fiduciary (fiducia cum amico), and the transfer of property rights in order to ensure the fulfillment of a loan obligation (fiducia cum creditore). Therefore, the idea of limiting at the legislative level of this phenomenon of an exclusively interim function is doubtful and may have long-term consequences with a further understanding of this legal phenomenon and the implementation of foreign practices. The introduction at the legislative level of the institution of trusts as a type and method of ensuring the fulfillment of an obligation with an attempt to provide him with dual content of a legal nature is nothing more than an attempt to replace the content with a form. The legal construction of law of trusts introduced by the legislator is, by its legal nature, a surrogate for mortgages in its “super form”. In it, the lender is “facilitated” by the mechanism of foreclosure on property, through ownership of the title. Trust property as a type and method of ensuring fulfillment of an obligation cannot be considered as a special type of property right without a doctrinal and legislative review of the content of the owner’s eligibility. At the legislative level, it would be more successful to implement the evolutionary form of trust - title support as a way to ensure fulfillment of an obligation without “obscuring” in its nature the attributes of this type of right to things as property right, albeit with the provision of a special type of property. Trust property as a way to ensure the fulfillment of an obligation (title security) should be consid-ered as a type of right to things to another's property, and not as a special type of property right with a defect in the content of eligibility.
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Cameron, Edwin. "Constructive Trusts in South African Law: The Legacy Refused." Edinburgh Law Review 3, no. 3 (September 1999): 341–58. http://dx.doi.org/10.3366/elr.1999.3.3.341.
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This paper was first presented on 19 October 1996 at a joint seminar of the Scottish Law Commission and the Faculty of Law, University of Edinburgh, on the subject of constructive trusts. Although trusts are a distinctively Common Law institution, seemingly incompatible with Civilian concepts of property, trust law has been received in the mixed South African legal system. But constructive trusts have found no place in South African trust law, in the view of the author, rightly so. Much of the work performed by the constructive trust can be achieved through the law of obligations, while the acceptance of the institution can produce anomalous results in insolvency.
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Clarry, Daniel. "FIDUCIARY OWNERSHIP AND TRUSTS IN A COMPARATIVE PERSPECTIVE." International and Comparative Law Quarterly 63, no. 4 (October 2014): 901–33. http://dx.doi.org/10.1017/s0020589314000463.
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AbstractOwnership is an essential feature of trusts that serves as a useful analytical and comparative tool in order to cross legal traditions and compare different legal institutions, which to a greater or lesser extent serve similar socio-economic and legal functions. The concentration on ownership enables one to burrow down into the normative roots of different legal traditions. This article comprises three substantive parts: first, characterizing ownership and the manner in which this concept distinguishes the civil and common law traditions; second, contextualizing ownership in relation to trusts from different legal systems; and, third, conceptualizing some contemporary challenges arising out of the divergent nature of ownership in the phenomenology of the trust paradigm, the value of the trust to comparative law and its effect on the civil law as a distinct tradition. It is argued that trusts necessarily involve the fiduciary administration of property and that ‘fiduciary ownership’ is a better shorthand description of the encumbered nature of trust property, rather than ‘dual’ or ‘split’ ownership, which is misleading and mistaken.
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Stępkowski, Aleksander. "ROZWÓJ INSTYTUCJI TRUSTU W PRAWIE SZKOCKIM." Zeszyty Prawnicze 4, no. 1 (May 30, 2017): 91. http://dx.doi.org/10.21697/zp.2004.4.1.06.
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Development of the Law of Trusts in ScotlandSummaryThe earliest indisputable traces of trusts law in Scotland may be found in reports from the first half of the XVH‘h century. There are several examples of even earlier dispositions to which a fiduciary character might be ascribed, coming from the XV,h and XVTh centuries. Nevertheless, we are not able to state categorically that these represent examples of trusts, since there is nothing about priority of beneficiary's rights in respect to trust property, before trustee’s personal creditors, whereas it seems to be today differentiam specificam discerning trust from contractual relations.According to the aforementioned case law, the main subject of trust dispositions was land (immoveable property, called in Scotland “heritable”). The main issue giving rise to legal controversies was the question of the manner in which the existence of a trust in land was allowed to be proved. The rules of evidence adopted by the Court of Session differed substantially from those of Scottish land law which were usually applied when proving titles in land. According to Scottish institutional writers, it seems to be most probable that the reason for such a favourable standing of land being subject to trust was that the Court of Session proceeded on the ground of its’ nobile officium, extraordinary equitable jurisdiction performed by this court, most probably since the very early stages of it’s activity, on the basis of a statutory provision from 1540.During the XVIIth century the first statutory regulations concerning trusts appeared, but more substantial progress in this respect took place in the XIXth century. Most often, it was statutory implementation of earlier common law principles and, in relation to trustees’ competences, of standards relating to the professional drafting of trust deeds. XIXth century legislation was consolidated in 1921 as the Trusts (Scotland) Act 1921 which was subsequently amended in 1961 and, together with the British Trustee Investments Act 1961 (which is still in force in Scotland although will be repealed soon, as it was already done in England in 2001), is partial codification of Scottish trusts law. Nevertheless it should be emphasised that Scottish trust law is still principally based on case law.As regards the influence of English Equity on the development of the Scottish law of trusts, it seems to be negligible in the early stage of the latter’s development. A considerable influence of the Chancery Court’s cases upon Scots law in respect of trusts only began in the fourth decade of the XIXth century, with a book by Charles Forsyth ( The Principles and Practice o f the Law o f Trusts and Trustees in Scotland (1844)), who had used intensively English case law as an illustration, he claimed, of Scottish law principles. Since this publication, nevertheless, English case law, as exposed in English textbooks, though not necessarily in the Chancery Reports, became an important source of inspiration for Scottish lawyers writing books on this subject and, subsequently, it was also used in the Court of Session as an important source of authority. Notwithstanding the above, Scottish judges were always more critical and generally have applied English principles in a less willing manner than has been seen from Scottish advocates and solicitors. Generally speaking, the English influence, although considerable, has not changed the very construction of Scottish trusts law. A beneficiary’s claim in respect of trust property is still considered to be a personal right, as opposed to a sui generis right in real estate.Contemporary Scottish jurisprudence considers trust property as a trustee’s special patrimony, distinct from his general patrimony and, as such, not accessible by his personal creditors. In this way, the Scots have worked out a civil law approach to trust, which was long considered to be hardly possible. This is also a reason why Scottish trusts law, as well as the whole of Scottish law, attracts so much attention from lawyers from Continental Europe.
12
Wong, Simone. "Constructive trusts over the family home: lessons to be learned from other commonwealth jurisdictions?" Legal Studies 18, no. 3 (September 1998): 369–90. http://dx.doi.org/10.1111/j.1748-121x.1998.tb00023.x.
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Ownership of the family home is usually not disputed until either the relationship between the spouses or cohabitants breakdown or there is a competing claim over the property by a third party. In such circumstances, determination of ownership rights becomes imperative. The Matrimonial Causes Act 1973 gives the courts adjustive powers to deal with disputes between spouses on the breakdown of the marriage. Notwithstanding this, there may be circumstances where it will be necessary or desirable to determine property rights between spouses. Furthermore, the adjustive powers of the courts are not applicable to cohabitants. Thus, in the absence of legal co-ownership in the family home, cohabitants and spouses who cannot rely on the 1973 Act will have to establish an equitable interest in the property. The analyses relied on are primarily based on property law and trusts principles and, more particularly, imputed trusts and proprietary estoppel. Under trusts principles, imputed trusts are usually taken to refer to resulting and constructive trusts.
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Peart, N., M. Henaghan, and G. Kelly. "Trusts and relationship property in New Zealand." Trusts & Trustees 17, no. 9 (September 24, 2011): 866–82. http://dx.doi.org/10.1093/tandt/ttr111.
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Lin Lee, Chyi, Richard Reed, and Jon Robinson. "Momentum Profits in Australian Listed Property Trusts." Pacific Rim Property Research Journal 13, no. 3 (January 2007): 322–43. http://dx.doi.org/10.1080/14445921.2007.11104236.
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Braun, Alexandra. "The Risk of Misusing Trusts: Some Lessons from the Italian Experience." European Review of Private Law 24, Issue 6 (December 1, 2016): 1119–39. http://dx.doi.org/10.54648/erpl2016066.
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In the course of the past decade, several European legislatures have introduced devices into their legal systems that are functionally similar to trusts, including the Czech Republic, which has inserted a new set of provisions into its new Civil Code. Such developments are sometimes accompanied by fears that trusts might be misused or abused. Some of the concerns commonly raised about trusts are that trustees could misappropriate trust property to the detriment of beneficiaries, or that trusts could be used to shield assets from creditors, spouses or forced heirs of the settlor. Other fears are that trusts can be used for money-laundering purposes or to hide assets from tax authorities, and that third parties dealing with trustees may be unaware of the trust’s existence. This article discusses Italy’s experience with trusts, where they have become a popular instrument used in a variety of contexts, often to make up for shortcomings of domestic laws. Its aim is to provide a brief overview of the nature of the trusts employed in Italy, and their purposes, and to discuss whether and to what extent some of the concerns mentioned above have materialized in legal practice, and how they have been addressed. The Italian experience demonstrates that not all concerns that are generally voiced against trusts necessarily arise in practice. It further shows that where issues have arisen concerning, for instance, creditor protection, the legal system is well equipped to tackle or mediate risks of misusing and abusing trusts. Italian courts have reacted effectively even though there is no national legislation providing Italian courts with special powers.
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Wilde, David. "THE THREE CERTAINTIES REQUIRED TO DECLARE A TRUST – OR IS IT FOUR? “DISTRIBUTIONAL CERTAINTY”." Cambridge Law Journal 79, no. 2 (May 14, 2020): 349–59. http://dx.doi.org/10.1017/s0008197320000264.
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AbstractThis article argues certainty in trusts is better understood by recognising a fourth certainty: “distributional certainty”. Distributional certainty is required in private trusts that involve dividing the property between beneficiaries: their shares must be clear. Distributional uncertainty is not, as usually understood, merely an instance of uncertainty of property: it has differing consequences, special resolution techniques, and may explain “administrative unworkability” in discretionary trusts. Distributional certainty is not required in charitable trusts. But this is not, as usually understood, merely an instance of the rule that charitable trusts do not need certainty of objects: it is an independent proposition.
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Dixon, Martin. "TO SELL OR NOT TO SELL: THAT IS THE QUESTION THE IRONY OF THE TRUSTS OF LAND AND APPOINTMENT OF TRUSTEES ACT 1996." Cambridge Law Journal 70, no. 3 (November 2011): 579–606. http://dx.doi.org/10.1017/s0008197311000869.
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The 1925 property statutes, particularly the Settled Land Act 1925 and the original sections 30 to 36 Law of Property Act 1925, were premised on a fairly narrow view of the prevalence and purpose of co-owned land. Successive interests either fell within the awkward provisions of the Settled Land Act 1925 or were organised under a trust for sale within the ambit of the Law of Property Act 1925. Concurrent co-ownership could exist, also under a trust for sale, but the Law of Property Act 1925 was premised on the assumption that such trusts would be expressly created, with readily identifiable beneficiaries, holding in defined shares, often for investment purposes and primarily in respect of larger land holdings. That is why the original scheme was a trust for sale, why sections 34 and 36 Law of Property Act 1925 appear not to contemplate the implied trust of land at all,1 why interests behind trusts originally were not regarded as proprietary,2 why statutory overreaching is so powerful and why sections 2 and 27 Law of Property Act 1925 stipulate a requirement of at least two trustees or a trust corporation before overreaching can occur.3 Concurrent co-ownership was, essentially, a financial not a residential matter, and the ready conversion of land to liquid asset was regular and expected. The position today is virtually the reverse, with concurrent co-ownership being the normal way by which the family home4 is owned and with the expectation that it will be retained as that home. Realisation of its capital value is intended to be postponed until the family's needs have changed.
18
Harpum, Charles. "The Uses and Abuses of Constructive Trusts: The Experience of England and Wales." Edinburgh Law Review 1, no. 4 (September 1997): 437–63. http://dx.doi.org/10.3366/elr.1997.1.4.437.
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This paper, which was first given on 19 October 1996 at a seminar on constructive trusts organised by the Universities of Edinburgh and Strathclyde with the Scottish Law Commission, examines the role that constructive trusts play in English law. It explains the amorphous nature of such trusts, how they are rooted in concepts of equity and conscience, and how they are often imposed in accordance with equity's traditional grounds for intervention. The central thesis of the paper is that a constructive trust, when imposed, will cause the trustee to become subject to one or more fiduciary obligations or incidents. One situation in which this is not the case— where a constructive trust is employed to impose an encumbrance on a transferee of property—is criticised. There is also a critique of the recourse to equitable maxims as a reason for the imposition of constructive trusts. The paper concludes with some reflections on the likely path of development of constructive trusts in English law and whether they ought to be more widely received into Scots law.
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Канашевский, Владимир, and Vladimir Kanashevskiy. "The Concept of Beneficial Ownership in Russian Judicial Practice (Private Law Aspects)." Journal of Russian Law 4, no. 9 (August 29, 2016): 0. http://dx.doi.org/10.12737/21218.
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The author studies the definitions and features of the concept of “beneficial ownership” and its application by Russian courts. Although the Russian civil law does not recognize the concept of beneficial ownership which comes from the English law of equity, this concept is beginning to be recognized by Russian judicial practice, in particular, in the recent resolutions of the Russian Supreme Court of the Russian Federation. The cases in question relate to the division of the joint property acquired by spouses during the marriage (the Russian courts consider the property (assets) of the offshore company or trust controlled by spouse (acting as a beneficiary) as a joint spouses’ property); recognition of the rights of beneficiary for challenging the decisions of the companies controlled by such beneficiary; levy of execution upon the property of the offshore companies and trusts controlled by beneficiary for the beneficiary’s debts. It is obvious that decisions of Russian courts are in the line with trends of development of foreign case law. One of the manifestations of the beneficial ownership concept in Russian law is the institute of “a person having factual right for the income”, fixed by Russian tax law. Considering the deoffshorization policy in Russia, it is obvious that this institute will continue to be reflected in the national tax law. The author attends to, inter alia, the questions of applicable law to beneficial ownership, including applicable law to the relations with offshore companies and trusts. In particular, the legal regime of foreign trust’s or offshore company’s property shall be determined by the law of the relevant foreign jurisdiction but not by the rules of Russian law.
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Atkins, Scott. "Solomon v McCarthy: unwritten trusts of land." Trusts & Trustees 26, no. 4 (April 12, 2020): 372–76. http://dx.doi.org/10.1093/tandt/ttaa013.
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Abstract Unwritten trusts of land have always been troublesome, given that they prima facie infringe the writing requirement set out in section 53 (1) (b) of the Law of Property Act 1925. Ways around the problem exist, so that an unwritten trust may be recognised, but those ways usually rely on an implied trust (which does not require writing under section 53 (2) of the Law of Property Act 1925) or the court to disapply the writing requirement by invoking the maxim that equity will not permit a statute to be used as an instrument of fraud. The latter principle has been recognised as applying where a settlor claims that he himself is also the beneficiary. Recently, the county court in Bristol considered whether that maxim might be used to support an unwritten trust of land made by a settlor in favour of a third-party beneficiary and, for the first time in a reported case, came to the conclusion that it could not.
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Graham, T. "Protecting assets from divorce--trusts and nuptial agreements: offshore trusts and community property." Trusts & Trustees 18, no. 7 (July 30, 2012): 634–51. http://dx.doi.org/10.1093/tandt/tts064.
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Chong, Adeline. "The Common Law Choice of Law Rules for Resulting and Constructive Trusts." International and Comparative Law Quarterly 54, no. 4 (October 2005): 855–83. http://dx.doi.org/10.1093/iclq/lei040.
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There is a dearth of authority and in-depth discussion concerning what the choice of law rules are for claims involving the assertion that property is held on a resulting or constructive trust. It is usually thought that the choice of law rules set out by the Hague Convention on the Law Applicable to Trusts and on their Recognition (hereafter the ‘Hague Trusts Convention’), as enacted into English law by the Recognition of Trusts Act 1987, apply. However, it is arguable that this is not so for some types of resulting and constructive trusts, namely those governed by a foreign law; or, at the very least, that some doubt exists as to whether the Hague choice of lawrules apply to all resulting and constructive trusts. It is therefore important that the common law choice of law rules for such trusts is clearly elucidated. Unfortunately, this is an area of the law that is distinctly undeveloped. The aim of this article is to consider what are or should be the common law choice of law rules for resulting and constructive trusts.
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Swadling, William. "A new role for resulting trusts?" Legal Studies 16, no. 1 (March 1996): 110–31. http://dx.doi.org/10.1111/j.1748-121x.1996.tb00402.x.
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As Millett LJ recently remarked, there can be no doubt that ‘the most difficult question’ to be solved in the law of restitution is the exact circumstances in which a proprietary restitutionary remedy will be available to a restitutionary claimant. The boundary between restitution and property is still largely unmapped and continues to generate controversy. What is needed is a comprehensive and systematic enquiry into the effects that the various restitutionary factors (mistake, duress, failure of consideration and so on) have on the passing of property between plaintiff and defendant. That, however, would require a whole book, or, at the very least, a series of articles. This article takes a modest step in that direction by concentrating on one specific topic within the area of restitution and property, viz, the inter-relationship between the law of restitution and resulting trusts.
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Wall, Jesse. "The functional–formal impasse in (trust) property." International Journal of Law in Context 14, no. 3 (August 29, 2017): 437–53. http://dx.doi.org/10.1017/s1744552317000295.
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AbstractThis paper identifies an impasse between two conceptions of ‘property rights’. Formal conceptions explain ‘property rights’ in terms of an alienable right to exclude, that has moral significance in terms of individuals’ preference satisfaction, and describe a trust beneficiary as having a right against the trustees’ right. Functional conceptions explain a ‘property right’ in terms of the entitlements in a resource, which has moral significance in terms of a range of individual and social values, and describe a trust beneficiary as having a share in entitlements in the resource. This impasse has general implications for the normative analysis of property law and particular implications for the practical application of redistributive statutory provisions to discretionary trusts. The solution to this impasse lies in the abandoning the language of ‘property’ when we are concerned with the entitlements in a resource.
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Hwang, In Gyu. "Study on the Improvement of Public Trust Taxation System." KOREAN SOCIETY OF TAX LAW 7, no. 2 (June 30, 2022): 5–58. http://dx.doi.org/10.37733/tkjt.2022.7.2.5.
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The Public Trust Act (“PTA”) was enacted in 2014 and came into effect in 2015. According to the PTA, a public trust is a trust under the Trust Act which mainly engages in public services and has been approved by the Minister of Justice. The Minister of Justice discloses the status of approved public trusts pursuant to the PTA, and as of May 2022, a total of 33 public trusts have been identified.
The total entrusted amount in Korea’s trust business has increased rapidly, reaching KRW 1,166.7 trillion as of December 2021. On the other hand, the growth of public trusts has not reached that level. One of the reasons to account for the unpopularity of public trusts is that, while many studies have been accumulated on trusts in general, successfully resolving uncertainty in terms of tax practice, research on the taxation system of public trusts has not been active. Therefore, defining the taxation system for public trusts, to spot potential issues and present possible solutions, will aid in promoting the use of public trusts and developing the relevant taxation system.
This study focuses on the concept of public trust and how the current taxation system of public trusts are operated, to spot potential issues with reference to case studies of other countries and finally recommending solutions to improve the public trusts taxation system.
In order to find specific problems and suggest solutions, this study organized the issues that may come up at establishment stage of a public trust. In addition, this study conducted an analysis according to the subject of public trusts, such as grantor, trustee, recipient (the word ‘recipient’ is used instead of a ‘beneficiary’, because public trusts are a type of a purpose trust without a beneficiary), and trust property. During this process, systematic errors and problems appearing in each respective subject were discovered, and directions for improvement were found.
In this process, several problems were discovered and improvement mea- sures were suggested. First, the possibility of conflicts between the provisions of the Corporate Tax Act was discovered and suggestions for improvement were suggested. Second, a plan was proposed to organize and simplify the complex public trust taxation system. Third, since it was confirmed that the income tax taxation regulations for public trusts were insufficient, we proposed an amendment to the regulations. Fourth, it pointed out that public trust trusts are not included in “public interest corporations, etc.” under the Corporate Tax Act, and suggested improvement measures. Fifth, it pointed out that public trusts are being discriminated against compared to public interest corporations in non-inclusion of deductible expenses for projects for specific purposes, and suggested improvement measures. Finally, argued for the resolution of the discrepancy between PTA and relevant taxation system.
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Lin Lee, Chyi, Jon Robinson, and Richard Reed. "Listed property trusts and downside systematic risk sensitivity." Journal of Property Investment & Finance 26, no. 4 (July 11, 2008): 304–28. http://dx.doi.org/10.1108/14635780810886627.
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Ellingham, Ian. "Authorized property unit trusts and the Canadian experience." Journal of Property Finance 6, no. 1 (March 1995): 28–37. http://dx.doi.org/10.1108/09588689510088168.
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Newell, Graeme. "Factors Influencing the Performance of Listed Property Trusts." Pacific Rim Property Research Journal 11, no. 2 (January 2005): 211–27. http://dx.doi.org/10.1080/14445921.2005.11104183.
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Buyadzhу, G. "EVOLUTION OF THE FIDUCIARY RELATIONSHIP DOCTRINE IN INDEPENDENT UKRAINE: FROM COMPLETE OBJECTION TO IMPLEMENTATION INTO CURRENT LEGISLATION." Bulletin of Taras Shevchenko National University of Kyiv. Legal Studies, no. 118 (2021): 9–14. http://dx.doi.org/10.17721/1728-2195/2021/3.118-2.
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The article addresses the development of the fiduciary relationship doctrine in Ukraine. Primarily, the paper covers the alteration in understanding the idea of trust and other trust-like constructions by Ukrainian society from the 90s of the XX century to present time. The purpose of the article is to highlight the main stages of and approaches to understanding of fiduciary relationship in general and trust and other trust-like constructions in particular, as well as to analyse their common and distinctive features in comparison to related legal institutions and to determine the prospects for their further implementation in Ukrainian law. Methodology. To shed the light on different approaches to understanding trusts and paratrust constructions, a comparative-historical method was used in the article; also the methods of analysis, ascent from abstract to concrete and system-structural methods of scientific cognition were applied. Results and conclusions. Misunderstanding of the idea of a trust has led to violation of the rights of citizens affected by financial fraud of trust companies, which has played a significant role in shaping the distrustful or negative attitude of lawyers and ordinary citizens of Ukraine to trusts and other trust-like constructions for almost two decades. The concept of trust has existed in the law of Ukraine for a long time, but mostly it is associated with the negative issues like hiding property, hiding information about the ultimate beneficial owners etc. In addition, the concept of trust is changing constantly; this indicates the evolution of approaches to understanding the institution. At present, a trust is understood as "legal relationship," while the previous version of law defines a trust through the category of a legal entity. The approach to understanding the concept of beneficial ownership in a trust differs in common law countries and Ukraine. In Ukraine, this definition covers the right of a natural person who, regardless of formal ownership, has the opportunity to exercise decisive influence over the management or economic activity of a legal entity directly or through other persons. Keywords: fiduciary relationship, trust, trust-like (paratrust) constructions, property management, Trust Convention, beneficial ownership, trustee, ultimate beneficial owner, beneficiary, controlled foreign company (CIC), revocable trusts, irrevocable trusts.
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Swadling, William. "Trusts and Ownership: A Common Law Perspective." European Review of Private Law 24, Issue 6 (December 1, 2016): 951–72. http://dx.doi.org/10.54648/erpl2016058.
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In the trust institution introduced by the new Czech Civil Code, ‘ownership’ of trust ‘property’ is vested in no-one. What motivates this provision seems to be the view that the common law trust involves a division of ownership, but that such is prohibited in Czech law generally. The purpose of this article is to demonstrate that the idea of the common law trust involving a division of ownership is false. Indeed, English law does not even have a concept of ownership. It instead deals with rights, but even so, these rights are not split when held on trust. The question is how, if at all, these insights can help us understand the newly introduced Czech trust. The conclusion which is reached is that when the Czech Civil Code provides that the trust property is owned by no-one, it simply means that it is not held beneficially by anyone. The property is not, as might seem at first sight, res nullius.
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Sepp, Katrin. "Legal Arrangements Similar to Trusts in Estonia under the EU’s Anti-money-laundering Directive." Juridica International 26 (November 13, 2017): 56. http://dx.doi.org/10.12697/ji.2017.26.06.
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According to EU Directive 2015/849, all Member States must establish a central register of data on ultimate beneficial owners of corporate legal entities and also of trusts and legal arrangements similar to trusts. First of all, this requires identification of the latter arrangements in the individual Member States, which is not an easy task: the definition related to being ‘similar to trusts’ is quite vague. The main aim with the article was to determine the arrangements in Estonian private law that should be considered in implementation of the UBO-register rules. Therefore, a brief overview is provided of trusts and two types of arrangements used in civil-law systems for the same purposes – the Treuhand and fiducie. The piece then highlights the similarities between these and the trust, with the conclusion being drawn that being ‘trust-like’ in the context of the directive boils down to situations wherein from the outside the property has one person as an owner but there also exists an internal relationship that obliges the title-holder to observe certain duties and that may grant another person the economic benefit from the property. Next, the article turns to the Estonian legal scene. Under consideration are family- and succession-law devices (e.g., executorship of a will), various forms of shared ownership and communities (in particular, silent partnership and contractual investment funds), mandate and commission contracts, intermediated holding of securities, and fiduciary ownership for security purposes. The conclusion is that there indeed are arrangements in the Estonian legal system that fall into the category of trust-like arrangements under the directive but that the registration of UBO data for all of them would not be without difficulties. Finally, some criteria for registration of the relevant arrangements are proposed.
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Orawiec, Bartłomiej. "ENGLAND: DID THE DECISION OF THE SUPREME COURTIN THE CASE OF JONES V KERNOTT CLARIFY THE LAWIN RELATION TO TRUSTS OF THE FAMILY HOME?" Review of European and Comparative Law 28, no. 1 (March 15, 2017): 85–127. http://dx.doi.org/10.31743/recl.4313.
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This dissertation will focus on common intention constructive trusts in relation to shared ownership of the family home predominantly in relation to unmarried couples. These trusts are particularly important because as opposed to married couples where the court may determine a couple’s financial and property issues upon divorce using the provisions of the Matrimonial Causes Act 1973, the position of unmarried couples is not covered by any legislation and so judges need to refer back to case law and property law in order to establish the equitable ownership of property.
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Karlović, Tomislav. "Transfer of Ownership in fiducia and Trust – Preliminary Considerations on the Possibilty of Application of the Hague Convention on the Law Applicable to Trusts and on their Recognition." Zbornik radova Pravnog fakulteta u Splitu 55, no. 3 (October 3, 2018): 579–605. http://dx.doi.org/10.31141/zrpfs.2018.55.129.579.
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Considering the main characteristics of fiducia in Roman law, as well as its functions and place within the real property law and the law of obligations, two features that are also prominent in the definition of anglosaxon trust stand out. These are the fiduciary nature of the relationship between the interested parties, as fides (trust) formed the initial basis of both institutes in the period before they were legally recognized, and the transfer of ownership made for specific purpose, different from the regular enjoyment of the object by the owner. However, there is a significant difference between the two (fiducia and trust) becuase of the duality between common law and equity in English legal system. While the mutual interests of the parties to fiducia in Roman law were protected only by personal actions (actiones in personam), parties’ proprietary interests in English trust were (and still are) recognized with the parallel existence of legal and equitable title. In contemporary Croatian law of real property the closest thing to the division of titles exists with regard to the conditionally transferred ownership as regulated in Art. 34 of Ownership and Other Proprietary Rights Act, entaling the division on prior and posterior ownership, both of which can be entered into Land registry and other registries. In the article it is analysed how this division and the following registration of both titles could allow for the effects to be given to trusts, in case it would be pondered on the benefits of accession of Croatia to the Hague Convention on the Law Applicable to Trusts and on their Recognition. Accordingly, after the exposition of Croatian law, it is given a short overview of English trust with emphasis on trusts of land and, subsequently, of the rules of the Hague Convention on the Law Applicable to Trusts and on their Recognition. In the conclusion it is argued that perceived incompatibility of trust with civilian legal system can be overcome in Croatia with the help of extant legal rules regarding conditionally transferred ownership. Also, this incompatibility has already been refuted in several European continental countries from which examples lessons should be studied and learned, what would be the next step in the deliberations on the accession to the Hague Convention on the Law Applicable to Trusts and on their Recognition.
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Manthwa, Aubrey, and Paul Nkoane. "In Joint Matrimony We Share: Controlling the Powers to Use the Trust to Limit Matrimonial Property Rights in South African Law." South African Mercantile Law Journal 33, no. 1 (2021): 89–111. http://dx.doi.org/10.47348/samlj/v33/i1a4.
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The deceitful use of trusts has created a fair amount of controversy, specifically where it has appeared that a trust has been employed to limit the rights of third parties. This article argues that it is in the interests of the law to ensure that rights are vindicated when unlawfully limited. Similarly, it is in the interest of the common good that legitimately acquired rights are protected. Trust laws state that there must be a separation between control and enjoyment and, in cases where there is no separation, the courts may scrutinise the affairs of a trust. Recent developments have illustrated that measures that provide relief to spouses upon the dissolution of the marriage may not be readily invoked, especially for marriages in community of property. Family trusts have provided spouses with avenues for hiding assets that would otherwise fall into the joint estate. Courts need to adopt a robust approach when dealing with trust assets upon the dissolution of a marriage, particularly to protect the rights of competing spouses.
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Howieson, Bryan. "Beyond Redemption: The Reporting Practices Of Unlisted Property Trusts." Australian Accounting Review 1, no. 3 (May 1992): 21–27. http://dx.doi.org/10.1111/j.1835-2561.1992.tb00126.x.
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Lantushenko, Viktoriya, and Edward Nelling. "Institutional Property-Type Herding in Real Estate Investment Trusts." Journal of Real Estate Finance and Economics 54, no. 4 (March 4, 2016): 459–81. http://dx.doi.org/10.1007/s11146-016-9553-4.
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Newell, Graeme, and Ian MacIntosh. "Currency Risk Management Practices by Australian Listed Property Trusts." Pacific Rim Property Research Journal 13, no. 2 (January 2007): 213–33. http://dx.doi.org/10.1080/14445921.2007.11104231.
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Wall, Jessie. "Taking the Bundle of Rights Seriously." Victoria University of Wellington Law Review 50, no. 4 (December 2, 2019): 733. http://dx.doi.org/10.26686/vuwlr.v50i4.6308.
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After a painfully long set up, that attempts to ground three claims about property law (in general) and the nature of the beneficial interest (in particular), this article considers two arguments about the law of discretionary trusts. The first is the bundle of rights argument. This argument concerns the interpretation of "property" in legislative provisions. It suggests that where legislation is concerned with the structure of the social relationships that property institutions facilitate (rather that the juridical structure of rights and duties under property law), interpretations regarding what amounts to a "property" interest should also be "functional" (rather than "formalistic"). The second argument is the concept of the illusory trust. This argument concerns the standard package of constitutive elements required by trust law when a settlor uses the trust institution to order his or her affairs. Where an ostensible trust lacks a constitutive element, it can be said to be illusory. I consider here recent attempts to further delineate the concept of the illusory trust, that look to the "substance" or "reality" of the trust, and in doing so, shift our attention away from juridical form and onto social function. I will argue that only the former argument needs to be taken seriously.
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Russell QC, David. "Trusts and foundations move onshore in the Gulf." Trusts & Trustees 27, no. 4 (May 1, 2021): 311–20. http://dx.doi.org/10.1093/tandt/ttab016.
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Abstract Commencing in the 7th-century CE, the notion developed in Islamic jurisprudence that property, although legally owned by a person, might nonetheless be subjected to enforceable obligations that it be utilised for the benefit of specific purposes (usually religious) or, later, for individuals, be they the recipients of charity or family members. Such property was said to be in detention (“waqf”). Later, similar legal concepts developed in the common law world (in the form of trusts) and the civil law world (in the form of foundations). In the Gulf Co-operation Council (GCC) states (the Kingdom of Saudi Arabia, United Arab Emirates, Oman, Qatar, Bahrain and Kuwait), laws of the jurisdictions recognise these concepts to varying degrees—most completely in the United Arab Emirates, where common law trusts in the financial free zones, trusts in the civil law jurisdiction, foundations, a form of statutory waqf (the endowment) and awqaf (the plural of waqf), and the Court of Appeal of the Dubai International Financial Centre (“DIFC”) has recently reviewed the application of the DIFC’s Trust and Foundations Laws with the benefit of an opinion from Shari’a scholars as to the interaction of the DIFC’s legal structures with Shari’a. The article explores the development and interaction of these legal concepts, the role which they can play in the context of the region’s private wealth, and compares the various statutory regimes.
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Follan, Patrick J. "A Strange Genesis: Section 2 of the Trusts (Scotland) Act 1961." Edinburgh Law Review 24, no. 3 (September 2020): 323–41. http://dx.doi.org/10.3366/elr.2020.0648.
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In all jurisdictions which recognise the trust, a third party who receives trust property in breach of trust will be protected from a claim by the trust beneficiary only if in good faith. The sole exception is Scotland. In Scots law, a third party is secure even if they take in bad faith (that is, knowing that the property was transferred in breach of trust). This exceptional protection was created by section 2 of the Trusts (Scotland) Act 1961, a provision which, in its distinctiveness, is of significance to the Scottish law of trusts as well as of major comparative relevance. The purpose of the article is to investigate the origins of the section 2 protection. It begins by introducing the provision before the exceptional degree of protection it confers is placed in external and internal comparative context. With reference to preparatory materials, the article then moves to consider how the basis of section 2 lay in problems with the precise scope of the powers of a trustee in Scots law as well of a closely related institution, the judicial factor. It demonstrates that these problems led to the initiation of a law reform process which, principally by mistake and misunderstanding, resulted in an unsatisfactory solution in the form of section 2. The article then traces the later history of the provision from its inception to the present day, taking account the further attempts at reform which have had varying degrees of success. The article closes with some reflections on section 2 and the process of law reform which was its genesis.
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Mee, John. "PRESUMED RESULTING TRUSTS, INTENTION AND DECLARATION." Cambridge Law Journal 73, no. 1 (March 2014): 86–112. http://dx.doi.org/10.1017/s0008197314000038.
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AbstractRejecting the competing positions of Swadling and Chambers, this article argues that the law of presumed resulting trusts reflects a very old rule that, upon a voluntary transfer, the fate of the beneficial interest in the property depends on the intention of the transferor. The case law shows that the presumption is of an intention to create a trust for the transferor or provider of the purchase money. It makes no difference if, reflecting the historically important concept of “retention”, this is phrased in negative terms as a presumption that the intention of the transferor was not to pass the beneficial interest to the transferee.
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Kurtulan Güner, Gökçe. "Rethinking the Need for Commercial Trusts in Civil Law Jurisdictions." European Review of Private Law 29, Issue 3 (July 1, 2021): 463–88. http://dx.doi.org/10.54648/erpl2021024.
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In this article, the need for the adoption of trusts into civilian jurisdictions has been analysed by placing a special focus on commercial trusts. It has been argued that, the trust may offer an added value for these legal systems as it is more advantageous in terms of asset management, investment and financing purposes. In the context of asset management and investment, the trust is compared with the fiduciary contract and even though both legal instruments serve the purpose of separating management and beneficial ownership; it has been concluded that the trust fulfils this function more successfully thanks to both the property dimension and the obligation dimension that are incorporated into it. In the context of traditional financing, the advantage of the trust manifests itself in case of multi-source financing – more clearly, in case of loans acquired by multiple lenders. Here, the added value of the trust is apparent with regard to the composition of common security packages, which constitutes a significant advantage from various perspectives for both borrowers and creditors.
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Morris, Rupert, and Jessica Clark-Jones. "I’ve got the power: Saunders v Vautier in the context of massively discretionary trusts." Trusts & Trustees 28, no. 1 (December 8, 2021): 19–28. http://dx.doi.org/10.1093/tandt/ttab098.
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Abstract In two judgments in 2019 and 2020, the Guernsey Court of Appeal upheld the judgment of the Guernsey Royal Court in Rusnano Capital AG (in liquidation) v Molard International (PTC) Limited and Pullborough International Corp [2019] GRC 011 in relation to the statutory “Saunders v Vautier” provisions under the Trusts (Guernsey) Law, 2007. The position, in Guernsey at least, remains therefore that beneficiaries of a discretionary trust can require trustees to terminate a trust and distribute the trust property, even in circumstances where a broad power to add further (unspecified) beneficiaries exists. This article considers the position, on any view unsettled, in England and Wales (as well as other jurisdictions which still rely on the common law interpretation) of the so-called rule in Saunders v Vautier in light of the somewhat contradictory case law and authorities, particularly in the context of trusts where the dispositive discretions effectively displace the beneficial interests.
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Dernbach, John. "The Role of Trust Law Principles in Defining Public Trust Duties for Natural Resources." University of Michigan Journal of Law Reform, no. 54.1 (2021): 77. http://dx.doi.org/10.36646/mjlr.54.1.role.
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Public trusts for natural resources incorporate both limits and duties on governments in their stewardship of those natural resources. They exist in every state in the United States—in constitutional provisions, statutes, and in common law. Yet the law recognizing public trusts for natural resources may contain only the most basic provisions—often just a sentence or two. The purpose and terms of these public trusts certainly answer some questions about the limits and duties of trustees, but they do not answer all questions. When questions arise that the body of law creating or recognizing a public trust for natural resources does not fully answer, trustees, lawyers, and courts often look to trust law for help. In fact, they have been doing so for more than a century, including in the U.S. Supreme Court’s landmark 1892 public trust decision, Illinois Central Railroad Co. v Illinois. In this sense, trust law provides a set of background or underlying principles for interpreting and applying public trusts. Using cases from around the country, this Article sets out a four-step methodology for determining when and how to use trust law principles to help interpret public trusts. This methodology can be applied in any case involving the use of specific trust principles to help interpret any particular public trust. This Article also explains that the relevant trust law should not be limited to private trust law, but rather it should include general trust principles, charitable trust law principles, and private (or noncharitable) trust law principles. This Article uses a 2019 Commonwealth Court of Pennsylvania decision, Pennsylvania Environmental Defense Foundation v. Commonwealth, as a case study. The case applies article I, section 27 of the Pennsylvania Constitution, which requires that public natural resources be conserved and maintained for the benefit of present and future generations. In that case, the court used an interpretation of private trust law to decide that the state could spend some bonus and rental payment money from oil and gas leasing on state forest and park land, which is constitutional public trust property, for non-trust purposes. This Article applies the four-part methodology to the case, explains general trust law and charitable trust law principles that the Commonwealth Court of Pennsylvania did not address, and argues that the use of these principles better fits the constitutional public trust. It concludes that the money from bonus and rental payments should be spent entirely for the purposes of the trust. This Article draws attention to both the potential value of trust law principles and also to their potential danger in the interpretation and application of public trust laws for natural resources. Trust law has the potential to enhance the protectiveness of public trusts by imposing various fiduciary duties on trustees. It also has the potential to undermine public trusts, particularly through rules requiring or encouraging that trust assets be financially productive. To vindicate public trusts for natural resources, environmental and natural resources lawyers need to become better trust lawyers.
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Rae, Emma, and Michael Cavanaugh. "Book Review: Kerry Ayers and Peter Wyllie Trusts and Relationship Property." Victoria University of Wellington Law Review 35, no. 3 (October 1, 2010): 773. http://dx.doi.org/10.26686/vuwlr.v35i3.5714.
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Sándor, István. "Different Types of Trust from an Ownership Aspect." European Review of Private Law 24, Issue 6 (December 1, 2016): 1189–216. http://dx.doi.org/10.54648/erpl2016069.
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The Anglo-Saxon legal institution of a trust is generally regarded as unique because of the simultaneous existence of a legal and equitable title. Legal systems based on Roman law recognize only the unity of ownership, which acts as the chief impediment to the introduction of trusts. Legislators in civil law and mixed jurisdiction countries discovered the relevant advantages of trusts in the economy and in the private sphere, therefore they tried to create similar institutions that could fulfil the same function. The aim of this study is to present a view and a comparative law analysis of the trust-like devices of civil law and mixed jurisdictions, with special emphasis on the regulation of trust property. The comparison will take into account characteristics such as ownership of the trust fund, asset partitioning, the nature of the parties involved in the legal relationship, and the possibility of tracing. The functionality of institutions in civil law countries is more or less adequate to serve the purposes of a trust, but several important details and relevant differences should be highlighted.
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Liao, Xuemei, Zhi Dong, and James Young. "Earnings Management: A Case of New Zealand Listed Property Trusts." Pacific Rim Property Research Journal 17, no. 1 (January 2011): 92–109. http://dx.doi.org/10.1080/14445921.2011.11104319.
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Penner, J. E. "The (True) Nature of a Beneficiary’s Equitable Proprietary Interest under a Trust." Canadian Journal of Law & Jurisprudence 27, no. 2 (July 2014): 473–500. http://dx.doi.org/10.1017/s0841820900006433.
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In recent years Chambers, Smith, McFarlane and Stevens have all sought to explain the nature of equitable proprietary rights by way of the concept of a ‘right to (or ‘in’, or ‘against’) a right’. In this paper I argue that there is a sense in which this conceptualisation of the beneficiary’s equitable proprietary under a trust is illuminating, but that, rather than a right to the trustee’s possessory interest in tangible property, the ‘rights’ of the trustee in which the beneficiary is interested are the trustee’s powers of title. I also contend, in a ‘fusionist’ spirit, that equitable property interests should not be treated as a particular ‘legal kind’, but rather that only interests under trusts should be regarded as a distinct sort of property interest within the numerus clausas. I go on to show how the proposed analysis best explains (1) our notion of ‘beneficial interest’ under a trust; (2) why a trustee is not a residual claimant to the trust assets; (3) the interest of a discretionary object of a trust; (4) the rules of and rationale for tracing; and (5) the ‘automatic’ resulting trust.
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Rey-Bear, Daniel, and Matthew Fletcher. "We Need Protection from Our Protectors: The Nature, Issues, and Future of the Federal Trust Responsibility to Indians." Michigan Journal of Environmental & Administrative Law, no. 6.2 (2017): 397. http://dx.doi.org/10.36640/mjeal.6.2.we.
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The federal trust responsibility to Indians essentially entails duties of good faith, loyalty, and protection. While often thought of as unique to federal Indian policy, it developed from and reflects common law principles of contracts, property, trusts, foreign relations/international law, and constitutional law. However, several issues preclude a greater understanding and implementation of the federal trust responsibility. These include Executive Branch efforts to avoid liability, neocolonial judicial activism, and episodic congressional attention. Enactment of legislation to reaffirm and modernize the federal trust responsibility through greater self-determination, integration, elevation, oversight, and funding should help overcome these issues to improve federal Indian policy.
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Traest, Michael. "Jonathan Harris, The Hague Trust Convention. Scope, Application and Preliminary Issues, Oxford – Portland Oregon, Hart Publishing, 2002, 529 pp." European Review of Private Law 11, Issue 2 (April 1, 2003): 264–66. http://dx.doi.org/10.54648/erpl2003017.
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This book is the first monograph published in England devoted to a detailed analysis of the Hague Convention on the Law Applicable to Trusts and on their Recognition, concluded in The Hague on 1 July 1985. It is divided into two parts. The first one deals with the private international law rules concerning the creation of transnational trusts. This part is also named “Launching the Rocket.” In doing so the author refers to the image of the rocket-launcher and the rocket regularly invoked in relation to transnational trusts. As indicated by the author, the former concerns those preliminary matters necessary for creation of the trust, such as the capacity of the settlor to dispose of his property on trust. The latter governs matters affecting the trust once it has come into existence, such as the role of the trustee, the administration of the trust and the relationship between the trustee and the beneficiary; those matters are essentially covered by the Hague Trust Convention. In using the image of the rocket-launcher and the rocket, it is made clear that the subject-matter dealt with by the Hague Convention does not have to be taken into consideration if the pre-conditions for the formation of a trust are not satisfied. In other words, the rocket is not considered if it is not correctly launched. Indeed, each contracting State bound by the Hague Trust Convention has to apply its own national conflict of law rules to determine whether the rocket was succesfully launched (p 3).