Trust Law Research Articles

Axiology of Legal Trust: From the Constitutional Dimension to the Practice of Mediation

The article discusses the issue of legal trust as current topic of modern Russian legal discourse. The social nature of trust in law in its axiological dimension is explored. The significance of the sociocultural basis for analyzing the axiology of legal trust as a value of constitutional law is substantiated. The value basis of trust finds its expression in the practical sphere, which is discussed in the article using the example of mediation. Trust is a key resource in cognitive processes. To study the practice of mediation through the prism of trust, the features of the cultural and historical development of countries are used. Using the example of the experience of various civilizations, the authentic nature of the emerging mediation activity is substantiated.

Looking for a rhyme, looking for a reason: reasonableness and the trustee

Abstract This article examines the standard of reasonableness required of trustees in the execution of their duties, particularly in light of the case of Perez v Equiom Trust Corporation (UK) Ltd & Anor. It explores the objective test for reasonableness, the heightened expectations placed on professional trustees, and the consequences of unreasonableness, including the impact on the trustee’s indemnity. The discussion delves into the nuances of trustee decision-making, the court’s role in intervening, and the implications of the Perez case on trust law and trustee conduct. The authors provide a critical analysis of the trustee’s obligation to act reasonably and the legal standards applied.

Public (Trust) Rights in Open Space: Day v Shropshire Council

In Day v Shropshire Council (Day), the Supreme Court considered the effect of a statutory trust under section 10 of the Open Spaces Act 1906 on a subsequent purchaser. Finding for the claimant, a local resident resisting development, the Supreme Court unanimously held that the local authority's failure to give notice and consider objections under the Local Government Act 1972 meant that the site's transfer into private ownership did not extinguish public trust rights to open space, binding the disponee. This note suggests that the decision in Day is to be welcomed, providing clarity on long‐established legislative provisions that protect open spaces, even when sites are not identified as such in planning processes. The note applauds the clarity of the Supreme Court's resistance to drawing on the law of trusts when interpreting statutory provisions and commends the ease with which the Supreme Court confirmed the co‐existence of public and private rights in land. The note also considers how Day illustrates the nature of local authority land ownership, a live issue at the boundary between land and administrative law, of particular interest at a time when local authorities are disposing of surplus open spaces for development.

Trusts and trust law in Thailand

Abstract Trusts in Thailand trace back to the late 19th century, influenced by the Bowring Treaty of 1855. Initially under English common law, the Thai Civil and Commercial Code of 1935 restricted the establishment of trusts. However, regulations evolved, with the Securities and Exchange Commission (SEC) proposing legislation in 2007 to facilitate trust transactions, particularly REITs and Infrastructure Trusts. Governed by Section 1686 of the Civil and Commercial Code and SEC regulations, REITs and Infrastructure Trusts cater to real estate and infrastructure investments. Despite past constraints, Thailand’s trust landscape now emphasizes regulatory frameworks for transparency, investor protection, and market competitiveness, potentially opening to private investors.

Third-Party and Bankruptcy Effects under Chinese Trust Law: Comparisons with English Trust Law

Abstract In English law, the trust's third-party and bankruptcy effects contribute significantly to its wide use in commercial transactions. In view of the trust's attractiveness in conducting commercial dealings, China has also introduced the trust model into its domestic legal system to enhance its financial infrastructure. However, given the extent to which Chinese law has been influenced by the Roman-Germanic tradition, China's replication of the trust's third-party and bankruptcy effects has encountered doctrinal obstacles. Drawing upon the experience of its Northeast Asian forerunners, China has established two mechanisms to achieve the third-party and bankruptcy effects: the regime of trust fund independence and the granting of the right of rescission to beneficiaries. These two mechanisms represent the adjustments made by Chinese legislators in the process of transplanting the trust model into the Chinese legal context. Adopting a comparative law perspective, this article examines these mechanisms in the Chinese law setting for two reasons: first, to explore the mechanisms’ constituent elements and their operation, as well as the roles of both mechanisms in the Chinese trust law system; and second, to furnish comparative law scholarship with broader insights into rule transplantation and reconciliation.

The Core Elements of the Trusts: From the Start of Three International Documents

The extensive application of trusts and trust laws has demonstrated that trusts, as an institutional tool with functional advantages in the realm of private wealth inheritance, on the one hand, offer an innovative framework for the transfer and management of personal assets. This serves as a valuable reference for non-trust law jurisdictions, displaying the distinctive structure of rights and obligations. On the other hand, for trust law countries, trusts born in different jurisdictions call for the adjustment and regulation of unified rules. Researching the core elements of the trusts can contribute to achieving these two goals. By carefully examining three international documents, this essay argues that each core element of trust intertwines to form a causal web: trust operates as a tool that protects beneficiary' interests and supports the fiduciary position of trustees (characterized by the separation of trust property). The location of ownership of trust property, however, remains an optional element determined according to local circumstances.

Regulating donation-based crowdfunding platforms in Hong Kong: A trust law framework

With the advance of technology, several crowdfunding platforms have emerged in Hong Kong to host informal public donation appeals. Unlike charitable crowdfunding activities, these appeals focus on crowdfunding to provide relief to specific individuals or groups in need. Due to the recent emergence of online informal public donation appeals and their lack of public benefit, regulatory bodies have not paid much attention to their regulation. However, recent media coverage highlighting scandals of maladministration of donation funds in the context of informal public donation appeals has impelled regulators to establish a systemic framework to govern crowdfunding platforms that host informal public donation appeals. This article addresses two main aspects of this topic. First, it discusses the operation of crowdfunding platforms that host informal public donation appeals and the risks associated with them. Second, it explores the feasibility of utilising trust law to regulate the administration of donation funds by these crowdfunding platforms.

Role of Cartels in Market Manipulation: Case Studies and Impacts on Consumers

This article provides an overview of how cartels manipulates the market and what are the problems that are being faced by the consumers. Cartels are said to be formed when two or more business enterprises makes an agreement formally or informally to promote their own interest which distorts the free and fair competition in the market by controlling the prices of goods and services. When it comes to the enforcement of anti trust law in India there are certain core areas in the Competition Act, 2002. The Competition Act increases the possibility of dealing successfully with the cartels and any anti- competitive agreement. Although, Competition Commission of India needs further strengthening with the operational and functional guidelines for its activities. The paper begins with an introduction to a cartel after that the authors explores about the origin of the cartels and types of cartels. It is also very important for us to understand a cartel so a chapter is being dedicated to it. The study also highlights the affects of cartelization in the market and an analysis of Competition Act, 2002. Furthermore, we’ve attached few renowned case studies. In conclusion to this paper we have understood that cartel is a very dangerous phenomenon in the business alliance and how CCI has brought a drastic change in last few years in the market

Does Trust Beneficiary Protection Affect the Performance of Trust Companies? An Analysis Based on the Theory of Law and Finance

<p>Trust beneficiary protection constitutes an important legal system in the trust industry. This paper, based upon the study approach of the “Theory of Law and Finance”, establishes the trust beneficiary protection index of China. We also test the influence of trust beneficiary protection on the performance of trust companies. As indicated by our study’s results, an “inverted U-shaped” relationship exists between the degree of trust beneficiary protection and the performance of trust companies. In a period when the trust law system has not yet been well established, strengthening trust beneficiary protection could help facilitate the growth of trust company performance. However, this facilitation effect gradually diminishes as the trust law system becomes more perfect. This in turn means that, after reaching a certain peak, conferring the beneficiary with more rights of supervision and participation would cause the performance of trust companies to decline. Improving regional legal environments could also help facilitate the growth of trust company performance. In addition, this facilitation effect is subject to the influence of the nature of trust company controllers. In trust companies controlled by local state-owned capitals, we find that the facilitation effect of the improvement of regional legal environments on trust company performance is inhibited. In trust companies controlled by non-state-owned capitals, however, the facilitation effect of the improvement of regional legal environments on trust company performance is enhanced.</p>

ON TRUSTS, HYPOCRISY AND CONSCIENCE

AbstractIn this paper, I suggest that taking seriously the way in which the trust is founded on a duty of conscience has far-reaching ramifications for the appropriate attitude towards new forms of trusts that are designed to allow people to enjoy the benefits of ownership without incurring the duties that come with it. The morally freighted concept of conscience that lies at the heart of trust law means that every claim against trustees invokes a demand that the trustee abide by the requirements of their conscience. The conditions on the right to blame others for a moral wrongdoing, and the relationship between blaming and suing in the context of trust law, lead to the conclusion that, in novel forms of trust that are geared towards the creation of a morally bankrupt “orphan property”, beneficiaries do not have moral standing to sue the trustee for a breach of trust.

Comparison of the Theory of Trust and Similar Institutions in Iranian and Common Law

The theory of trust is one of the most important theories in the law of obligations and stands in contrast to the theory of will sovereignty. This theory has a direct relationship with good faith. The theory of trust contains specific elements that have sparked differing opinions in common law countries. The United States, Canada, and Australia have accepted it, while countries like England have rejected it, similarly to how they reject unilateral obligations. This theory shares common points with the principles of unjust enrichment and reliance on property or actions and has been studied in relation to the theory of consideration. However, the characteristics of this theory include unpredictability, lack of comprehensiveness, lack of explanatory power, the absence of a necessary link between trust and obligation, the imposition of liability without fault, ambiguity in the concept of trust, undesirable judicial outcomes, and disregard for moral virtues. As mentioned, in Iranian law, some rules, such as the principles of unjust enrichment and reliance, bear similarities to this theory in non-contractual liabilities. In contrast, in common law, this theory has been compared and analyzed alongside estoppel, good faith, and unilateral obligations. Therefore, the present research conducts a comparative study of the evolution and scope of the application of the theory of trust in the law of obligations in Iran and common law through an analytical and descriptive method. It concludes that the acceptance of the theory of trust in both common law and Iranian legal systems is subject to criticism and, despite its similarities to various institutions such as agency, unjust enrichment, and reliance, it is more frequently raised in the context of civil liability than in the realm of obligations.

Some Aspects of the Intersection of the Law of Agency with the Law of Trusts

Some Aspects of the Intersection of the Law of Agency with the Law of Trusts

The Dark Side of Codifying U.S. Trust Law

The Dark Side of Codifying U.S. Trust Law

СОЦІОЛОГІЗАЦІЯ ПРИРОДНОГО ПРАВА: ДО ПИТАННЯ ПРО СУМІСНІСТЬ ТИПІВ ПРАВОРОЗУМІННЯ

The article presents research of the widespread tendency to justify the concept of natural law within empirical sociocultural and anthropological factors in order to deprive it of its metaphysical character, which corresponds to sociological methodology. Emphasis is laid on the assumption of fundamental compatibility of the concepts of natural and sociological law, which, according to the author, is false. This outlines the related goal of the thesis that lies in proving formal logical and methodological incompatibility of the aforementioned concepts as well as inability of the sociological interpretation of natural law to solve the problem of lack of trust therein. Emphasis is also laid on inability of sociological methodology to solve the problem of ethical justification of the correctness of legal standards and behavior, which is clearly manifested in the projections of legitimacy and values. It is emphasized that the ethical foundations of law are not derived from the actual condition and require absolute values of transcendent (metaphysical) nature. The conclusion is made that natural law and sociological law are comparable but logically incompatible concepts, since they are formed according to opposite essential features determining the oppositeness of the elements that constitute their scope. In addition, the notions and concepts under research are opposite according to the ontological principles of origin and essence as well as according to the cognitive ideals forming the principles of their methodology. Together, this makes it possible to insist on the oppositeness of their nature. However, their oppositeness does not exclude complementarity in performance of the methodological work they do, albeit in their own way. Therefore, the gaps in knowledge of the ontological foundations of the theory of natural law are not a reason to abandon its instrumental capabilities as a value-oriented measure for the norms established by people. To restore trust in natural law, sociologization thereof is not enough, since the empirical methodology of sociologism creates only the illusion of solution to the problem of justifying the ethical foundations of the legal order solved by the concept of natural law in a different cognitive way. Key words: natural law, sociological law, sociologization of natural law, sociological methodology, metaphysics, legitimacy, values.

The Numerus Clausus as a Meta-principle of Trusts Law: Hiding in Plain Sight?

The Numerus Clausus as a Meta-principle of Trusts Law: Hiding in Plain Sight?

기술신탁의 법경제적 분석에 관한 연구

Trust is a system derived from Common law, but it is widely used in Civil law countries, and technology trust can be said to be of great significance as a system that can maximize the economic utility of the trust system. In this study, based on the legal structure of technology trust, an economic analysis of the internal relationship of technology trust and technology trust management institutions was attempted to discuss how technology trust achieves efficiency. The summary of the contents is as follows. First of all, it was discussed that technology trust imposes fiduciary duty on the trustee to solve the problem of agency and transaction costs. The fiduciary duty of the existing trust law is applied as it is to technology trust, and in addition, the fiduciary duty is incorporated into contracts to reduce transaction costs. It was explained that since the fiduciary duty is a standard, not a rule, and costs are incurred, judicial costs are being reduced through sub-standards that specify the contents of the fiduciary duty. Regarding the restrictions on the participation of commercial corporations by technology trust management institutions, it was explained that the participation of private corporations increases the economic utility of society as a whole. It was presented based on the fact that existing trust companies are unlikely to handle technology trust business, that the scope of business activities of technology trust management business has expanded, which has increased the incentives for for-profit corporations to participate in the market, and that participation of for-profit corporations can contribute to increasing social welfare from a legal and economic perspective. Lastly, in relation to the non-dispute obligation imposed by the contract between the technology trust management institution and the licensee, it was reviewed whether the person concerned in the request for invalidation trial of the prior licensee was reviewed. Since the technology trust management institution is the least cost avoider compared to the licensee, the licenseeʼs request for invalidation trial can be justified. A request for invalidation trial by a licensee is a case in which a legal act is invalidated by applying the inalienability rule, and it can be said that the license contract itself is highly likely to create an external effect to a third party. Even if there is a non-dispute agreement in terms of the welfare of society as a whole, if this cannot be justified in terms of external effects, the licensee can claim for invalidation despite the non-dispute agreement. The criterion for determining the legitimacy of a non-dispute agreement is the case where transaction costs are minimized, and it is judged that the transaction costs can be minimized by leaving it to the judgment of the court.

Developments in trust law in India through the SEBI lens

Abstract Although the Indian Trust Act is an 1882 act which has not seen any change since its enactment, the law on the subject has evolved over time with changes in other laws/regulations. The article analyses the Indian securities/capital market regulator’s Securities Exchange Board of India (SEBI) perspective on the transfer of promoter shareholdings of a listed entity into private trust structures. The article discusses and examines SEBI regulations, circulars and orders to understand the contours of structuring an SEBI-compliant private trust. It also explores and analyzes SEBI’s thought process and the requirements that a structure must ensure in order to qualify for exemption.

Spain: Private client tax landscape

Abstract This article provides an analysis of Spain’s current private client tax landscape, explored during the 2023 Vienna Conference by The International Academy of Estate and Trust Law. It offers insights into personal income, wealth, inheritance and gift taxation, as well as aspects of Spanish residence and citizenship. With a strong focus on family and estate planning, it sheds light on the tax opportunities presented by relocating to Spain.

The Autonomy-Based Account of Chinese Trust Laws

Abstract There has been considerable discussion concerning the key values or goals underpinning the express trust device in English law. However, there is as yet no existing scholarship that explores the normative values of Chinese trust law since its enactment in 2001. This Article examines Chinese trust law from the perspective of personal autonomy. It identifies three dimensions of the conception of personal autonomy and explores how the trust law rules engage with each dimension. It finds that, in China, individuals have the autonomy to use the express trust device to arrange their property plans. However, such autonomy is limited in that it can only be exercised in alignment with the state’s regulatory goals. This is in stark contrast to its English counterpart, which allows individual autonomy to the largest possible extent. This Article considers the implications this analysis has for the reformation of Chinese trust law. It discusses some reform proposals that have been intensely debated in recent literature and highlights the insights the autonomy-based analysis can offer.

The Relationship between Political Configuration and the Characteristics of Judicial Power and the Implications for the Judicial Process in Indonesia to Realize Social Justice in Society

This article discusses the relationship between political configuration and the characteristics of judicial power exercised by the Supreme Court and Constitutional Court in Indonesia. In writing this article, a normative approach is used in the form of legal history and comparative law. There is a very close relationship between political configuration and the characteristics of judicial power in Indonesia so that it can influence judicial power in Indonesia. The form of political configuration intervention in judicial power is not implementing the decisions of the judiciary and replacing judges in the Supreme Court and Constitutional Court in Indonesia. This causes the level of public (society) trust in judicial power and law in Indonesia to decline drastically and of course, cannot realize social justice in Indonesia.