Beneficial Interest Research Articles

The Contractual Basis of the Assignment of Contractual Rights

There exist two popular conceptions of the assignment of contractual rights in common law jurisdictions. On the first view, the assignment operates as a conveyance of contractual rights from the assignor to the assignee. Under the second, the assignment is analogized to a trust. The original parties to the contract remain the same, but the assignee acquires an equitable or beneficial interest in the contract. This article examines the limits of these two conceptualizations, and proposes that assignments should instead be viewed as a separate contract to assign the rights owed under the initial contract. This approach provides both a normative grounding for the law of assignment in the principles governing the enforcement of contracts, and accounts for the unique effects generated by this type of transaction.

Trustees’ Indemnities and Fiduciary Duties: The High Court Appeal in Naaman v Jaken Properties Australia Pty Ltd

The High Court of Australia appeal in Naaman v Jaken Properties raises the question whether a successor trustee owes a ‘fiduciary duty’ to the former trustee to not destroy, jeopardise or diminish the former trustee’s right of indemnity over trust assets. That question arises to determine whether third parties are liable to account in equity as knowing recipients of property dissipated to frustrate the former trustee’s indemnity. It is argued in the appeal that the successor trustee holds the trust assets on express trust for the former trustee to the extent of the former trustee’s indemnity. That conclusion does not account for the variety of equitable interests. Three main points emerge. First, a current trustee has a ‘beneficial interest’ in trust assets only in a superficial sense. Second, upon transfer, that ‘beneficial interest’ is not ‘retained’ by the former trustee; the entitlement of a former trustee over the trust fund changes, and becomes analogous to a charge over a fund. The language of ‘beneficial interest’ in each case is misleading and should be eschewed. Third, it is unnecessary to ask, for the purposes of Barnes v Addy liability, whether any ‘duty’ owed by a successor to a former trustee is a ‘fiduciary duty’.

Penyuluhan Hukum “Meningkatkan Kesadaran Hukum Masyarakat Dalam Bermedia Sosial di Desa Keraswetan”

The purpose of this Community Service is to provide understanding and legal awareness for the community in using social media. Legal counselling was conducted in Keraswetan village, Geneng sub-district, Ngawi district and other legal issues related to the conditions of each village. The use of social media must be realised by the community in order to have a positive impact on the progress of society. In this almost digital age, there are still many violations of social media. The method used in this activity is in the form of a directed discussion which begins with counselling/lecture then continued with direct questions and answers. The participants were community members, especially women and local community leaders. The community does not fully understand the use of social media. Through this legal counselling activity, every citizen is expected to be able to utilise existing social media for positive and beneficial interests, and to be wise in social media. By understanding the law, it is expected that there will be an increase in public legal awareness.

Byers v Saudi National Bank: What's the Wrong in Knowing Receipt?

In Byers v Saudi National Bank, the Supreme Court held that where a right is transferred in breach of trust and the beneficiary's beneficial interest in the right is extinguished by the transfer, a personal claim for knowing receipt is not available against the recipient. Lord Briggs and Lord Burrows offered different reasons for this conclusion. This note argues that their approaches, while superficially similar, could lead to divergent results in future cases. It argues that Lord Briggs’ analysis is to be preferred, and is best understood to mean that a personal claim for knowing receipt is one for breach of a restorative duty or a custodial duty. Whilst Lord Briggs did not offer a justification for these duties, this note argues that these duties, and therefore the personal claim for knowing receipt, are justified by a third party knowingly depriving the beneficiary of the performance of their trustee's duties.

Cancelling fiduciary excuses

ABSTRACT In trust relationships, one person has a ‘beneficial interest’ in another’s performance. The former not only would but should benefit from the latter’s action, and the latter has a ‘fiduciary duty’ toward the former to so act. But where that act would otherwise be wrong, the first person’s beneficial interest would be providing a pro tanto reason for the second person to do something that is pro tanto wrong. That reason can – and should – be removed by the former renouncing their beneficial interest in the latter’s pro tanto wrongful action. Doing so would cancel the fiduciary’s excuse for wrongdoing on the beneficiary’s behalf.

ОРГАНІЗАЦІЙНІ УМОВИ КОРПОРАТИВНОГО УПРАВЛІННЯ В АГРАРНОМУ ІНТЕГРОВАНОМУ ПІДПРИЄМСТВІ

The article is devoted to the study of scientific knowledge on the general organizational conditions for corporate governance in an agrarian integrated enterprise. Based on the analysis of scientific knowledge on the conditions and features of corporate governance in integrated agricultural structures, the authors have found that relations arise not between the owners of a corporation, but between the corporation and the owners, and thus relations in the group of owners are absent or minimized. In practice, the key element of contracting is not an attempt to determine the behavior of the CEO in all possible situations, but to develop a structured system of remuneration for managers. The main goal of this operation is to find the optimal combination of different types of remuneration for top managers, which will ensure mutually beneficial interests of both shareholders and managers of the corporation. The author proves that the most effective mechanism of internal control over the activities of a corporation's management personnel is to involve shareholders in protecting their interests through agents (outsiders) who are not employees of the corporation but are vested with certain controlling powers. It is assumed that these agents will not be directly related to the operational management of the corporation, and thus they become the defenders of the interests of the owners. It is found that there is a direct relationship between agency conflicts and corporate governance mechanisms. The result of the study is the identification of positive and negative aspects of capital concentration in a corporation. This leads to the conclusion that with an increase in the manager's shareholding, the level of agency conflicts decreases. The authors propose a detailed model of corporate governance that takes into account the interests of all participants. The conflict of interests between owners and managers of a corporate structure is investigated. The peculiarities of functioning of the external mechanism of control by the financial market in the corporate governance system and their shortcomings are highlighted. The institutional factors influencing the corporate governance system of an integrated agricultural enterprise are demonstrated. Keywords: corporate governance, agricultural enterprise, integrated structure, financial market, control mechanism.

ВЗАЄМОЗВ’ЯЗОК ЕКОНОМІЧНОГО РОЗВИТКУ МІСТА ТА МАРКЕТИНГУ ТЕРИТОРІЇ

This article examines the theoretical and methodical aspects of territory marketing. The use of territory marketing tools is aimed at active interaction with the potential market, in particular, consumers of territorial services. The further development of the country involves the introduction of strategic and tactical tools for marketing territories. For the effective use of marketing opportunities of a specific city (village, community), forecasting is carried out, based on a comprehensive analysis of the potential of markets in a certain territory. Management of the socio-economic development of a modern city can be carried out through the performance of basic functions. These functions include planning to achieve strategically important indicators of the city's development, organization, motivation and coordination of the activities of all subjects and objects of management in order to achieve the planned indicators, as well as the function of auditing the effectiveness of such activities. In market conditions, the internal needs and development trends of the city, considered as a social organism, are increasingly taken into account. Territorial marketing acts as a tool for the strategic development of the territory and the most comprehensive approach to solving its problems. Marketing possibilities of the territory represent attractive directions of action for the purpose of socio-economic development of this region. Territorial marketing contributes to the coordination of mutually beneficial interests of various entities operating in the territorial market. The article considers the key components of urban marketing, as well as the conditions and tools for the prospective development of a specific territory. In our opinion, the main goal of territory marketing is to promote the socio-economic development of the city and improve the urban environment. This includes the creation of a qualitatively new environment for key target audiences: local residents – actual consumers, as well as potential users of the territory's services.

Fathers, daughters, and matters of trust

Abstract This article arises from a complex family dispute and some difficulty in determining the full facts underpinning the complaint. Information given by the parties grudgingly, partially, and in very poor order, caused the primary judge in the penultimate case considered herein to no doubt reluctantly prefer the daughter’s version of events over that of her father. The primary concern is whether or not the father loaned money to his daughter in the purchase of a house in her own name, giving rise to a concomitant responsibility on her part to repay the said loan, or whether, because of the nature of the arrangement, monies advanced by the father might instead be interpreted consistent with an intention on his part to have a beneficial interest in the property.

Importance of Okra (Abelmoschus esculentus L.) and It’s Proportion in the World as a Nutritional Vegetable

Okra belong to Malvaceae family, a commercial vegetable crops. It is extensively distributed in tropical, subtropical, and warm temperate parts of the world and is native to Ethiopia. It is essential to human nutrition and a good source of total minerals, vitamins, calcium, potassium, enzymes, and other nutrients that are frequently lacking in developing country diets. Additionally, reports of its medicinal value in treating curingulcers and providing relief from haemorrhoids. Okra has found medical application as a plasma replacement or blood volume expander and also useful in genito-urinary disorders, spermatorrhoea and chronic dysentery. The fruits of okra crop bringing into commercial production have reawakened beneficial interest.

Public services: theoretical and legal aspects

The scientific article is devoted to the coverage of the theoretical and legal aspects of the «public services» category. The purpose of this article is to form the concept of public services and clarify their essence. The research methods are a collection of modern methods and techniques for learning objective reality, combining both general scientific and special methods of learning legal phenomena. The basis of the research is a complex system method of cognition, in relation to which problems presented in the form of unity of social content and legal form. The results are a comparison of the categories «state service», «social service» and «public service». Different types of services provided in the country at the regulatory and legal level, among scientists and practitioners there are different definitions of the concept of «service». This refers to the definition of the concept of «public services», which prompts researchers to pay attention to the theoretical justification of the meaningful characteristics of the concepts of «services» and «public services». The main approaches to defining the concept of public services and the highlighted features of the above concept considered. Features of public services are highlighted: focus on satisfying socially beneficial interest; regulated by the norms of public law; public nature of legal relations regarding the provision of services; provision of services by a public entity or the private sector under the responsibility of the public sector; provision of services at the expense of state and local budgets; is a way for a person to realize his rights and legal interests or a way to fulfill his obligations. When using the «service» category, the main emphasis is on legal aspects, and in particular, on the subjects of provision. It emphasized that the state and its authorized bodies play an important role in the provision of public services. The analysis of the current legislation on the provision of public, state, local, administrative and other types of services gave reasons to determine that the specified services related to the public-authority activities of public authorities, mainly executive authorities, local self-government bodies and other authorized subjects.

ПЕРСПЕКТИВНІ АСПЕКТИ РОЗВИТКУ ІННОВАЦІЙНОГО ПОТЕНЦІАЛУ

Innovative potential as a trend of enterprise, which allows the development of a subject of government and the national economy to be deprived of a competitive, perhaps specific multiplier. New methods for establishing correlations between variable flows are useful for timely solutions, but may not be straightforward enough to encourage the development of new solutions to achieve a prolonged effect. The article examines the most important promising aspects related to the findings of strong correlations between the factors that characterize innovation between companies, and indicates possible prospects for increasing innovation potential Ialu. The goal was to identify the disadvantage of a different approach to the adoption of management decisions for leveling across different companies in the country, the indicators of each of which may have different attributes and characteristics. It is also important to obtain current information about the innovative potential of companies at different levels of economic development, with a special emphasis on maximizing the company’s investment profitability. A company with a high innovative potential, found itself in a developed information space, possessing patents, research and development, inventions, new ideas, new technologies will always occupy a higher competitive position among partners. Progressive studies show that the competitive attractiveness of an enterprise increases due to the growth of available resources, and also, the introduction of new techniques and technologies. The current global market makes the highest demands for increasing labor productivity, resources, methods of forming and increasing the potential of enterprises and sectors of the economy and reducing production costs. Any manufacturing company is organized to meet the various demands of society and the beneficial interests of the owners and employees of the enterprise. This provides a system for the long-term operation of the company for the production of high-quality and cost-effective products. The implementation of this task is impossible without creating a mechanism for the full, successful and rational use of all resources of the enterprise's potential.

A Hybrid Multi-Cloud Framework Using the IBBE Key Management System for Securing Data Storage

Information storage and access in multi-cloud environments have become quite prevalent. In this paper, a multi-cloud framework is presented that secures users’ data. The primary goal of this framework is to secure users’ data from untrusted Cloud Service Providers (CSPs). They can collude with other malicious users and can hand over users’ data to these malicious users for their beneficial interests. In order to achieve this goal, the data are split into parts, and then each part is encrypted and uploaded to a different cloud. Therefore, client-side cryptography is used in this framework. For encrypting users’ data, the BDNA encryption technique is used. This framework presents a hybrid cryptographic approach that uses Identity-based Broadcast Encryption (IBBE) for managing the keys of the symmetric key algorithm (BDNA) by encrypting them with the particular version of IBBE. The work presented in this research paper is the first practical implementation of IBBE for securing encryption keys. Earlier, IBBE was only used for securely broadcasting data across many users over a network. The security of this hybrid scheme was proved through Indistinguishable Chosen-Ciphertext Attacks. This double encryption process makes the framework secure against all insiders and malicious users’ attacks. The proposed framework was implemented as a web application, and real-time storage clouds were used for storing the data. The workflow of the proposed framework is presented through screenshots of different working modules.

Cystatin C and Chronic Complications of Diabetes Mellitus in a Subsaharian Population

Background: Type 2 diabetes (T2D) is a chronic and progressive condition whose early management is crucial in preventing the occurrence of its chronic degenerative complications. Cystatin C (CysC) is a biomarker that may have a beneficial interest in the early detection of microvascular and macrovascular complications of T2D. Methods: We carried out a cross-sectional analytic study at the National Obesity Center of the Yaounde Central Hospital. We recruited 135 patients with T2D and performed a neurologic physical exam using the Toronto clinical score, a fundoscopy, ECG, ABI, and the following paraclinicals: dosage of serum levels of Cystatin C, lipid profile (with determination of Atherogenic indexes), Creatinine (with calculation of glomerular filtration rate using CKD-EPI formula) and hs-CRP. Results: Prevalences of diabetic retinopathy, nephropathy, neuropathy and PAD were 3.0%, 8.9%, 38.5%, 28.1% respectively. Electrocardiographic signs of myocardial ischemia were present in 5.9 % of the participants. We found 0.3[0.5-0.3] mg/l as median levels of the HDL-cholesterol and 0.9[1.2-0.7] mg/l for LDL-cholesterol. The median value of GFR was 105.7[119,0-85.7] ml/min/1.73m². The median serum CysC level was 0.8[0.9-0.6]mg/l and varied with age (p=0.01), A1C (p=0.016) and high blood pressure (HBP) (p=0.006). There was a relationship between serum CysC and diabetic nephropathy (p=0.01) and neuropathy (p=0.025). There was no significant relationship with diabetic retinopathy (p=0.225), PAD (p=0.169) and ECG signs of myocardial ischemia (p=0.669). Conclusion: Chronic microvascular and macrovascular complications of type 2 diabetes are common and in our study are predominantly represented by diabetic neuropathy and PAD. Serum CysC can be useful in the diagnosis of chronic complications of T2D.

Scylla or Charybdis? The beneficiary’s dilemma between contempt of court orders and Swiss–Liechtenstein Anti-Espionage Law

Abstract Beneficiaries of foreign trusts and foundations are sometimes required by English and other courts to provide information and disclose documents pertaining to their beneficial interests and any related rights they may have to receive payment from the assets or income. This may be relevant in many circumstances, most importantly in family feuds and in divorce proceedings, where courts often ascertain whether such beneficial interests are to be considered beneficiaries’ property and thus whether they are to be shared with, or entirely awarded to, other litigant(s). Contempt of court orders ensure that the court’s directions to produce such evidence will be honoured and followed by the beneficiary, who will then, nolens volens, seek to obtain such information from the foreign trustee or foundation board. However, as the most recent Liechtenstein case law has revealed, this is not as easy and straight-forward as one would think. If the beneficiary is directed by the foreign court to disclose the trust or foundation documents, she or he may become liable for prosecution in Switzerland or Liechtenstein for the violation of somewhat strange, but serious, anti-espionage laws. Concurrently, the trustee or foundation board may not provide information to the beneficiary. Like shipwrecked Odysseus facing sea monsters Scylla and Charybdis, beneficiaries are then caught between two equally unpleasant options and need to venture into and navigate these uncharted waters.

Rethinking Section 2702

In 1990, Congress added chapter 14 to the Code to address several gift and estate tax avoidance techniques that flourished under prior law. In general, those avoidance techniques involved fragmenting beneficial ownership into separate interests to facilitate transferring the underlying property in several stages. A donor utilizing one of these techniques initially transferred one interest while retaining another interest in the same property. Eventually, the interest retained in the initial transfer lapsed or was disposed of in a subsequent transfer. Especially where the underlying property was held in a closely-held business entity or family trust, the respective interests could be tailored to shift value from donor to donee in ways that proved extremely difficult to detect or measure. Chapter 14 responds by adopting special valuation rules for certain types of transactions to ensure that such value shifts are included in the transfer tax base.Section 2702 of the Code applies to split-interest arrangements involving successive beneficial interests representing present and future rights to possess or enjoy the underlying property. When a donor transfers one interest to a family member while retaining another interest, the special valuation rules of section 2702 assign a value of zero to the retained interest unless it meets various statutory requirements. Since the value of the transferred interest is determined by subtracting the value of the retained interest from the value of the underlying property, section 2702 produces a correspondingly high value for the transferred interest, which is reflected in the donor's gift tax base.For example, a parent who gratuitously transfers a remainder to a child while retaining an income interest for a limited term makes a completed gift of only the remainder. If the special valuation rules assign a zero value to the income interest, the donor makes a taxable gift of the full value of the underlying property. If the parent subsequently disposes of the retained interest in a transfer that attracts a gift or estate tax, a problem of double taxation may arise. The section 2702 regulations address this problem by providing a corrective adjustment at the time of the subsequent transfer.

1)Definition of Free Gifts in Calculating Legal Reserve of Inheritance and Its Application to Trusts

The tools with which the deceased transfer their property to their heirs have varied. How to define free gifts in calculating legal reserve of inheritance in these various property successions is an important issue. In this Essay, I direct attention to the concept of ‘free gifts’ stipulated in Article 1113 of the Civil Act. I noticed the ways of calculating the amount of legal reserve of inheritance in which multiple parties participates especially in trusts. A trust is a legal relationship involving multiple parties so it has a similar aspect to a contract in favour of third person. But the beneficiary of the trust who is often called equitable owner in common law system has a stronger position than that of a simple creditor. Therefore it should be deemed that the value of the beneficial interest has been donated directly by the truster to the beneficiary when a property is transferred using a trust. Inter-vivos trust as will substitute is often substantively a gift mortis causa granting beneficial interest in trust to a beneficiary. As such, it is reasonable to include the value of the beneficial interest in the base property in calculating reserved share. And it should be allowed for the holder of revised share to claim for the return of it against the beneficiary by way of claiming the transfer of beneficial interest. In the case of trusts established by will, the beneficiary’s interest is calculated as a gift from the truster to the beneficiary. Therefore the value of the beneficial interest should be treated the same as the gift for the special beneficiary in calculating legal reserve of inheritance.

Beneficial Ownership in the Sharī‘ah and Modern Law: A Case of Sovereign and Quasi-Sovereign Ijārah Ṣukūk Structures in Pakistan, Bahrain, and Malaysia

The concept of beneficial ownership has been used extensively in sovereign and quasi-sovereign ijārah ṣukūk structuring. This paper aims to examine the concept of beneficial ownership in the light of Islamic jurisprudence, common law and civil law systems. It overviews the laws related to beneficial ownership in the Pakistani, Bahraini, and Malaysian legal regimes. It further carries out the Sharīʿah appraisal of beneficial ownership focusing on its chief characteristics. The findings of this study posit that the legal status of ownership as per the Sharī‘ah is a need-based phenomenon and not a mandatory requirement. Hence, if a particular transaction complies with the ahkam (commands) for milkiyah and tamlikat (ownership), then transfer of ownership is a compulsory element for sale consequences. Moreover, it also explains that the use of beneficial ownership in sovereign and quasi-sovereign ijārah ṣukūk structures is acceptable in principle because the valid sale transaction that occurs transfers the ownership to the latter. Hence, it is described in ṣukūk prospectuses as ‘beneficial interest’. Finally, it may also be justifiable in the context of of ḥurīat al-taṣarruf (right to dispose-off the asset) and ‘qualified ownership’.
 Keywords 
 Beneficial Ownership (BO), Ijārah Sukūk (IS), Legal Title (LT), Sharī‘ah Appraisal (SA) 

Beneficial Ownership in Sharī‘ah and Modern law: A case of Sovereign and Quasi-Sovereign Ijārah Ṣukūk Structures in Pakistan, Bahrain, and Malaysia

The concept of beneficial ownership has been tremendously used in the sovereign and Quasi-sovereign ijārah ṣukūk structuring on a mega scale. This paper aims to examine the meaning of beneficial ownership and its recognition in the light of classical and modern Islamic jurisprudence. It overviews the laws related to beneficial ownership in the Pakistani, Bahraini, and Malaysian legal regimes, and further elaborates Sharīʿah appraisal of beneficial ownership focusing on its characteristics in Sharīʿah. The findings of this study present that the legal status of ownership as per Sharī‘ah is a need-based phenomenon and not a mandatory requirement. Hence, if the transaction fills the ahkam (commands) for milkiyah and tamlikat (ownership) then the transfer of ownership is a compulsory element for the sale consequences. Moreover, it also explains that the use of beneficial ownership in sovereign and quasi-sovereign ijārah ṣukūk structures is acceptable in principle because the valid sale transaction that occurs between the originator and SPV effectively transfers ownership to later, as it is described in ṣukūk prospectuses as ‘beneficial interest. Finally, it may also be justified in the context of hurriyat al-tasurruf (right to dispose-off the asset) and ‘qualified ownership’.
 Keywords 
 Beneficial ownership, legal title, ijārah ṣukūk, Sharī‘ah appraisal

The Nature and Functioning of “Civil Law Trusts” Review of Patrick J Galea, The Trust Laws of Jersey and Malta: A Civilian Interpretation

The apparently irreconcilable relationship between lawyers from a civilian environment and the trust, a quintessential institution of English law, is best summarized in this well-known statement by Frederick W, Maitland1: If a foreign friend asked me to tell him in one word whether the right of the English Destinär (the person for whom property is held in trust) is dinglich or obligatorisch, I should be inclined to say: ‘No, I cannot do that. If I said dinglich, that would be untrue. If I said obligatorisch, I should suggest what is false. In the ultimate analysis the right might be obligatorisch but for many practical purposes of great importance it has been treated as though it were dinglich, and indeed people habitually speak and think if it as a kind of Eigenthum’. The nature of beneficial interests under an English trust is difficult to...

Personal property management in trust: Implications for Vietnam

With the prosperity of the nation, Vietnamese residents are the beneficiaries of more satisfactory legal frameworks regulating relatively all possible social issues. However, the legal component of personal asset management is considered to be refined. In reality, the existence of disputes and litigations over property management in fields of inheritance has placed pressure on legislators and law practitioners. Citizens who are not able to manage property effectively due to the lack of time, incapacity, knowledge deficiency are requesting an effective legal tool for a secure separation between a beneficial interest and a management right over the same property. At the same time, there exists cases where personal desires in the disposition of property upon death, the management of property, inheritance of family property should be respected accordingly. The demand for an effective personal or family asset management tool in Vietnamese current legal framework has become more urgent than ever, rooting in a fact that existing legislation has not satisfied an emerging need in the daily lives of inhabitants even though global cases have proven trusts as a very efficient method to handle all relevant practical matters. This paper focuses on researching the possibilities of adopting trusts in Vietnam to settle family property management through an analysis of practical demands, major characteristics of trusts, and potential obstacles. Results have shown a high potential of introducing trusts into Vietnam as a result of the fact that the Viet Nam Civil Code 2015 implies an appropriate background for such an introduction. The introduction and adoption of trusts into the Vietnamese legal system will possibly offer enormous benefits to the country's civilians.