Fiduciary management and fiduciary ownership in the post-Soviet countries: experience of Ukraine, Republic of Moldova, Republic of Belarus and Russian Federation

Abstract

Abstract The focus of this research is to define the common and distinctive features of the approaches used by lawmakers in the post-Soviet states (Ukraine, Republic of Moldova, Republic of Belarus and Russian Federation) for the purpose of implementing fiduciary management and fiduciary ownership institutes into their respective national laws. It has been established that over the course of the fiduciary management and fiduciary ownership institutes development in the countries referenced above, similar solutions were initially applied. Thus, an effort was made to implement the institute of trust inherent in the common-law countries into the systems of civil law. However, the effort did not come to fruition and that resulted in the fiduciary management institute being implemented. However, notwithstanding the similarities in the general approaches to determining the content of the fiduciary management provisions in all post-Soviet countries, the situation in Ukraine came out to be different from that in other countries. Following the adoption of the Civil Code (CC) of Ukraine with the fiduciary management institute enshrined therein, the Code was amended by adding the provisions on fiduciary ownership, but typical for the Civil Law countries. Over a long period of time, the Ukrainian legislation was the only one that referred to the institute of fiduciary ownership (fiducia), but due to recent dramatic overhaul, the CC of the Republic of Moldova was amended by the provisions on fiducia as well. This research represents a review of modern statutory provisions of Ukraine, Republic of Moldova, Republic of Belarus and Russian Federation covering fiduciary management and fiduciary ownership, including identification of common and distinguishing features thereof. It is found that as of today, the laws of the Russian Federation and Republic of Belarus do not go beyond fiduciary management, whereas those existing in the Republic of Moldova and Ukraine refer to both fiduciary management and fiducia institutes. Outlined in the research are differences between fiduciary management, trust and fiducia. The research also offers an insight into the degree of influence the Draft Common Frame of Reference and provisions of the CC of Romania and CC of France, those related to trust and fiducia, had on the formation of fiduciary ownership concept in the legislation of the Republic of Moldova. Also included in the research is the analysis of the latest changes in the legislation of Ukraine, related to the introduction of fiduciary ownership as a means to secure the performance of obligations.