Trust Device Research Articles

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.

Risk Allocation: The Contractual Practice of Chinese Charitable Trusts

Abstract In 2016, the Charity Law of the People’s Republic of China (Charity Law) introduced the charitable trust into the Chinese domestic system, with a view to releasing the potential of trusts to promote charitable activities. Drawing upon the failure of public welfare trusts, the new charity law designates special regulators for charitable trusts and endows settlors with extensive powers in the utilization of the charitable trust device. However, the new law on charitable trusts is vague and incomplete in numerous respects. Because of the vagueness of the law, public supervision, and regulatory scrutiny, trust parties might perceive risks in the creation and management of charitable trusts, and such perceptions may in turn motivate trust parties to use contractual tools to allocate such risks among themselves. Through semi-structured qualitative interviews and the study of real-world charitable trust contracts, this article offers a comprehensive analysis of the role of contracts in the regulation of charitable trusts. It explores the main uses of contracts in the field of charitable trusts and the reasons leading to such uses; it also aims to better understand how the scope and function of the legislative framework for charitable trusts is shaped by contractual arrangements between trust parties.

The toxic doxa of “clean sport” and IOC’s and WADA’s quest for credibility

The World Anti-Doping Agency (WADA) and the International Olympic Committee (IOC) have been held accountable for the “Russian crisis,” a major state-sponsored doping scandal, which began in 2014. The scandal has brought intense scrutiny on the IOC’s and WADA’s efficiency in curbing doping. This paper argues that their impaired credibility should not only be explained through their objective failure in preventing doping in Russia but can be mainly understood through an analysis of their staged promises of clean sport. This study relies on the analysis of a corpus of official policy documents from the IOC and WADA over the last two decades, several media sources, and field-notes from our “participant-as-observer” role during several anti-doping meetings. In the first part of this article, we argue that to convince the audiences of their commitment to the fight against doping, WADA and the IOC collaborate to create a “team presentation” in which “impression management” is used to stage promises of a strong anti-doping doxa. The second part of the article elaborates that performances are vulnerable and complicated. Because of its scale, the Russian crisis disrupted the IOC’s and WADA’s dramaturgy, revealing their individual agendas and their rivalries over the control of the doxa, with the IOC seeking to protect its power and WADA trying to remain a “trust device.” Finally, the article shows that the IOC and WADA trapped themselves within their own staged discourse because of their divisions and their outbidding promises of clean sport, which turned ineffective and even “toxic.” We conclude that such a scenario was detrimental to the overall anti-doping efforts and the subsequent credibility of these organizations.

Securing Proprietary Rights for Buyers of Unascertained Fungible Goods in a Bulk in Malaysia

The research aims to ascertain the most effective methods to protect the rights of buyers of unascertained fungible goods who have paid under a contract of sale subject to the Malaysian Sale of Goods Act 1957. The research method is doctrinal. The findings reveal that in the event the seller becomes insolvent, the buyer as unsecured creditors would need to compete with the other creditors for the price of the goods. The trust device and the adoption of section 20A and 20B of the English Sale of Goods Act 1979 could provide adequate protection by conferring proprietary rights to buyers. Keywords: Contract; Sale of unascertained goods; Proprietary rights; Trusts. eISSN: 2398-4287 © 2020. The Authors. Published for AMER ABRA cE-Bs by e-International Publishing House, Ltd., UK. This is an open access article under the CC BYNC-ND license (http://creativecommons.org/licenses/by-nc-nd/4.0/). Peer–review under responsibility of AMER (Association of Malaysian Environment-Behaviour Researchers), ABRA (Association of Behavioural Researchers on Asians) and cE-Bs (Centre for Environment-Behaviour Studies), Faculty of Architecture, Planning & Surveying, Universiti Teknologi MARA, Malaysia. DOI: https://doi.org/10.21834/ebpj.v5iSI1.2323

Secure data-sharing using distributed environmental matching keys

In the past decade, with the development of data-sharing on cloud storage, people can access their personal or commercial data stored in different systems or devices anytime and anywhere. However, the shared data is distributed over many cloud storages. This may increase the risk of unauthorized access or even insider threats. Many commercial cloud storages provide data encryption service with extra charge; however, such service often encrypts data by using only one encryption key. When the authorized users of one group would like to access the shared data, they need to own the same decryption key, i.e., group key, which may rise the risk of data leakage, especially when the key is hacked. Multi-key encryption is another way to protect the shared data. But it is hard to manage multiple keys and share them with other authorized users, especially in a cloud environment. To provide a secure and effective data sharing method in a cloud environment, in this paper, we construct a secure cloud data encryption protocol, named the Environmental Matching key based Data- Sharing protocol (EMaDS in short). The EMaDS encrypts shared data by using one encryption key which combines several environmental matching keys derived from authorized user’s password and a trust device’s hardware/software configuration. Our security analyses show that the EMaDS is able to resist machine-specific data leakage, replay attack, eavesdropping attack, impersonation attack, forgery attack, and known-key attack. Besides, the mathematical proof also shows the probability with which to generate the same environmental matching key by using the same trusted device is less than 1wm×w!, where w is the number of parameters of a trusted device, and m is the number of parameters chosen for generating environmental matching key. When the trusted device is different, it is absolutely impossible to generate the same environmental matching key. These analyses conclude that the EMaDS is very suitable for group data sharing under heterogeneous environments and is practically useful in business.

The new role trusts play in modern financial markets: the evolution of trusts from guardian to entrepreneur and the reasons for the evolution

Trusts, originally used to protect family landholdings over generations, have developed into a vehicle that not only acts as a guardian of family property, but also operates as an entrepreneur for commercial uses. The significant role the trust plays in financial markets has also spurred the introduction of trusts into civilian jurisdictions. This new role of trusts invites scholars to rethink general notions of the law like property, company, or tax in the context of trust law. Through an examination of the evolution of trusts, notably in China, this article seeks to redress misunderstanding of the new role of trusts and remove some of the mystery around the trust by placing it within the broader historical context within which trusts evolved. It also critically analyses the reasons for such evolution and attempts to answer the question of what makes a trust attractive for commercial uses. The article argues that the popularity of trusts in modern commercial and financial markets lies in the inherent flexibility of the trust device, the independence of trust property, the segregation of control and benefits of trust property, an ability of the trust to circumvent legal obstacles, and advantages of the trust over other business entities, such as companies.

The fraudulent use of trusts

The use of trusts for dishonest purposes is a recurrent concern. This article examines the ways in which the trust device has been abused over the last two decades and offers some observations upon whether current legal test relating to sham needs to be recalibrated to harmonize it with legitimate public expectation.

The Enigma of the Quistclose Trust

The Quistclose trust is an invaluable commercial device for lenders in view of its unique quasi-security element. It is the product of equity's flexibility in navigating the strict rigours of the common law. Unfortunately, since its inception and recent resurgence in Twinsectra v Yardley, it has been an eternally baffling subject. This mystery is largely caused by the unconventional principles upon which the Quistclose trust is founded and its strategic straddle between the realm of trusts and insolvency law. However, its increasing importance in commercial contracts and international finance transactions such as securitisations sparks renewed interest in the subject. Analysing the doctrinal difficulties which confounds both equity scholars and legal practitioners alike, this paper argues that this trust device is too useful in commercial practice to be abandoned and ultimately lends support to the restitution-inspired arguments of Lord Millett in rationalising the juridical conundrums that afflict the trust.

The dabl Educational Trust device equivalence procedure

Manufacturers of blood pressure measuring devices that have previously been successfully validated for accuracy may make modifications to a device, which do not affect its measurement accuracy and should not require further validation. In this paper the procedure for manufacturers to declare the equivalence of a modified device with a device that has been validated earlier is described.

A New Avenue for Tax Avoidance Transfers Through Use of the Trust Device

A New Avenue for Tax Avoidance Transfers Through Use of the Trust Device

Civil Law Substitutes for Trusts

Trusts have now pervaded all fields of social institutions in common law countries. They are like those extraordinary drugs curing at the same time toothache, sprained ankles, and baldness sold by peddlers on the Paris boulevards; they solve equally well family troubles, business difficulties, religious and charitable problems. What amazes the sceptical civilian is that they do really solve them! Trusts have become so indispensable to the life of the Anglo-saxon jurist that one of his first questions when he meets a civilian is: How do you solve the problem that we solve in using the trust device? The aim of this article is to answer that question. But before answering it, we must explain that from the mere fact that trusts do not exist in the civil law, it does not follow that they would not be recognized or enforced in civil law countries. It is not the plan here to consider all the principles of conflicts of law which would be applicable to trusts; it will be enough to show the approach to the problem. The law of trusts appears to the civil law judge to have two aspects, the creation of personal relations, and the creation of rights in rem. As for the first, it is a firmly established principle of the civil law that parties can assume whatever obligations they please as long as such obligations are not considered against public policy, and an ordinary trust is not so considered. Of course, certain clauses of a trust may be against public policy under any system of law. The significant thing is that in a trust qua trust there is nothing shocking to the mind of civil law jurists, as far as rights in personam are concerned. Considered from the angle of rights in rem, the question appears to be an entirely different one. Rights established in property located in a civil law country must be recognized in that country under its own system. The question therefore is, does the civil law have rights in rem similar enough to those created by a trust to render recognition of the latter possible? To that question it is impossible to give an unqualified answer, because rights in rem vary greatly in different trusts. All degrees may exist between cases in which the cestui que trust has no legal personality (trust for the care of horses, for erecting a monument, for saying masses, etc.), and those in which the cestui que trust has created the trust himself for his own convenience and has a substantial control over its administration and duration. Hence the approach to the solution of the pres-