Abstract

The present paper has been submitted and defended as the LLM Thesis at the Central European University, Budapest (International Business Law Program) in November 2003.Its purpose is to analyze and reconcile in a comparative perspective different fiduciary relationships, which can be encountered throughout the world. The ultimate goal, which curbs the scope of the study, is to provide a basis for the private international law characterization. In order to accurately classify a particular relationship, one has to understand it first. It is the comprehension of the notion of the ‘fiduciary relationships’, which is the main concern of the present work. Even more, it is the question whether it is possible to discover a unitary concept of a ‘fiduciary relationship’ that lies behind the analysis.The study proceeds as follows. It starts with the description of essential characteristics of the Anglo-American trust, as developed in the courts of equity in the medieval England. Attention is devoted to specific concepts of the common law systems: resulting and constructive trusts. The phenomenon of the ‘international trust’ in the offshore jurisdictions is given some concern. The term ‘fiduciary relationship’ as understood in the common law systems is described and contrasted with the concept of ‘fiduciary relationships’ as used in the present work. Subsequently, the true nature of the common law trust is investigated. It is argued that the trust, although having strong ties with contracts and property law, is a distinctive device, which has an independent position within the common law legal systems. This fact will however cause even more confusion for the civil law lawyers who do not know how to conceptualize trust. The work then describes the institutions outside the strictly common law tradition, which might also be treated as genuine trusts (in particular attention is devoted to mixed jurisdiction such as Scotland, South Africa, and Louisiana). The purely civil law jurisdictions, which decided to adopt the trust, are also briefly mentioned. The analysis then moves away from the trusts and concentrates on those types of fiduciary relationships, which cannot be construed as genuine trusts. These will often be referred to as analogues of the trust. Attention is devoted to Germany, where a functional equivalent of a trust is known (Treuhand). The fiduciary relationships of other civil law jurisdictions are also briefly mentioned and the examples from Switzerland, France, Netherlands, and Poland are given. The study analyses the model of a trust adopted in the Hague Convention on the Law Applicable to Trusts (1985). The proposition that the HTC introduces “a shapeless trust” is discussed and rejected. An attempt to actually demarcate the scope of the Convention follows. This is carried out for the purposes of the conflict of laws characterization under The Hague Convention. Argument is made that the autonomous characterization should be favored.The study concludes that it is impossible to speak of a 'fiduciary relationship' as a unitary legal concept. Rather, there are many different institutions that are known under this name. This is even more certain on the level of the conflict of laws, which does not recognize the concept of the ‘fiduciary relationship’, though it recognizes a notion of the ‘trust’. As long as one talks of a genuine trust he or she remains within a coherent category. As soon as one leaves the 'trust' and tries to find way to other fiduciary relationships, he or she finds himself (or herself) sandwiched between numerous fiduciary relationships, which do not constitute a homogenous category, but have diverge characteristics and belong to very different branches of law.

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