Commercial Aspects of Trusts and Fiduciary Obligations

By Ewan McKendrick | Go to book overview

10
ASSET PROTECTION FOR MULTINATIONAL CORPORATIONS

Harry Wiggin


1. Introduction

Individual and corporate investors throughout the world have, in recent years, become increasingly aware of the potential adverse commercial consequences of political and economic instability. This is especially so at the present time.

The risks have, of course, been apparent since the advent of international trade. Indeed, as early as the Magna Carta in 1215, a principle similar to that enshrined in more recent Trading with the Enemy legislation was recognized, namely that the property in Britain of subjects of an enemy government could be attached until and unless it was established that their country recognized the property rights of aliens. However, down the centuries, and especially in the eighteenth and nineteenth centuries, numerous international treaties were entered into with the object of protecting the sanctity of private property; it was not until the American Civil War that Trading with the Enemy legislation as we now know it came into its own.

An examination of various countries' Trading with the Enemy legislation which developed during the two World Wars and subsequently would occupy a treatise in its own right and will not therefore be attempted in this brief chapter. Suffice to say that, although protection from the impact of Trading with the Enemy legislation was the principal motivating factor leading to the creation of corporate asset protection trusts in the past, this is no longer likely to be the case.

Professor Jeffrey Schoenblum will explain, in Chapter 11, the many obstacles to protecting assets against United States expropriation, confiscation, or freezing. Not only these obstacles, but also recent changes in the world political picture also, will militate against the perceived utility of and need for asset protection mechanisms for United States situs assets.

As this chapter will seek to establish, however, there are many risks other than United States vesting and freezing against which corporations operating internationally will wish to secure protection for their assets. It is submitted that, with careful planning, such protection is something to which they can reasonably aspire.

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