The International Trust Litigation Committee Report for jurisdictions other than the USA

Abstract

The Privy Council decision in Investec Trust (Guernsey) Ltd and Bayeux Trustees Ltd v Glenalla Properties Ltd, Thorson Investments Ltd, Eliza Ltd, Oscatello Investment Ltd and Rawlinson and Hunter Trustees SA (Guernsey) [2018] UKPC 7 dealt with whether a Guernsey trustee’s contractual liabilities to third parties as trustee of a Jersey trust turned upon contract law or trust law. Primarily, the decision turned upon the construction of The Trust (Jersey) Law 1984. However, the majority of the Privy Council thought that the time has come ‘to recognise that as a general rule the common law will recognise and give effect to limitations of liability which arise under an entity’s constitutive law by reason of the particular status or capacity in which its members or officers assume an obligation’. This note argues that the time is not ripe for such a general rule to be adopted in private international law, and indeed that it will never be.