17
Trusts

Before 1987, the English conflict of laws contained very little clear authority on the choice of law rules governing trusts, or rules for the recognition of foreign trusts, and what authority existed was almost entirely concerned with trusts created by will and matrimonial property settlements. There was virtually nothing about other settlements created inter vivos. This state of affairs was not, perhaps, surprising, since the concept of the trust is virtually unknown, at least in its English sense, outside the common law world. The occasions on which conflicts questions concerned with trusts come before the English courts must be relatively few.1

However the Hague Conference on Private International Law, at its Fifteen Session, drew up a Convention on the Law Applicable to Trusts and their Recognition, which was signed in 1986. This Convention was given effect in the law of the United Kingdom by the Recognition of Trusts Act 1987.2 The title of this Act is rather misleading, since most of the Convention is concerned with laying down choice of law rules to govern trusts and only a few articles are concerned with their recognition. It should be said that the main interest of this country in the conclusion of the Convention was not so much in laying down choice of law rules but in securing the recognition of English trusts by other countries' courts.


Application of the Hague Convention

The Convention applies to trusts created voluntarily and evidenced in writing (Article 3).3 So purely oral trusts, for example, are not within it.

____________________
1
Many of those which have come before the courts concerned taxation. Cases have come before the Australian courts more frequently, but that may be because Australia consists of eight separate legal systems.
2
S. 1(1). The text of the Convention, with some omissions, is scheduled to the Act. The Official Explanatory Report is by Overbeck in Actes et Documents de la 15e Session p. 370. More accessible is D. J. Hayton, 'The Hague Convention on the Law Applicabe to Trusts and on their Recognition' (1987) 36 ICLQ 260.
3
The Convention applies to trusts regardless of the date of their creation: art. 22. However the Recognition of Trusts Act 1987, s. 1(5) provides that this does not affect the law to be applied to anything done or omitted before 1 August 1987. 286

-286-

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Conflict of Laws
Table of contents

Table of contents

  • Title Page *
  • Contents v
  • Preface to the Third Edition vii
  • Table of Statutes viii
  • Table of Cases xxiv
  • Part I - General Principles 1
  • 1 - Introduction 3
  • 2 - Characteristics of the English 8
  • 3 - Choice of Law Rules 11
  • 4 - Proof of Foreign Law 33
  • 5 - Domicile and Residence 37
  • 6 - Substance and Procedure 60
  • Part II - Jurisdiction and Foreign Judgments 69
  • 7 - Jurisdiction of the English Courts 71
  • 8 - Staying of English Actions and Restraint of Foreign Proceedings 84
  • 9 - Foreign Judgments 109
  • 10 - Jurisdiction and Judgments in the European Union and Efta 131
  • 11 - Arbitration 179
  • Part III - Law of Obligations 187
  • 12 - Contract 189
  • 13 - Tort 220
  • Part IV - Property and Succession 241
  • 14 - Property Inter Vivos 243
  • 15 - Succession 268
  • 16 - Matrimonial Property Relations 277
  • 17 - Trusts 286
  • Part V - Family Law 293
  • 18 - Marriage 295
  • 19 - Matrimonial Causes 319
  • 20 - Children 334
  • Part VI - Exclusion of Foreign Laws 359
  • 21 - Public Policy 361
  • Part VII - Theoretical Considerations 375
  • 22 - Reasons for and Basis of the Conflict of Laws 377
  • 23 - Public International Law and the Conflict of Laws 386
  • Index 395
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