Trust Law Research Articles

Social media influence: a new frontier in proprietary rights?

Abstract The importance of social media has rapidly increased throughout the 21st century. The metric of influence has been key to the commercialisation of social media, with accurate methods of quantification now allowing it to be used by a litany of corporate bodies to identify appropriate individuals to act as their brand ambassadors for the purpose of marketing products. Given the flexibility of equity, it is only a matter of time before such a valuable commodity is recognised under the law of trusts as a metric for identifying beneficiaries or as the subject matter of a trust itself.

The nature of property in cryptoassets

AbstractDisputes relating to cryptoassets have proliferated in recent years, along with the rise of the cryptoasset market. Some of these can be resolved using traditional principles of contract, tort or trust law, but proprietary issues raise particular conundrums. While cryptoassets have generally been accepted to be property, that is merely the starting point. To properly resolve proprietary disputes, it is necessary to provide a reasoned and robust explanation for why particular rules of title originally developed in the context of tangible property should apply. In turn, two foundational questions must be answered. First, what is the subject-matter of the property right in cryptoassets? And secondly, what is the proprietary effect of a blockchain transaction? These issues have received relatively little attention in the literature, which has focused on whether cryptoassets are property at all, and existing contributions (including the Law Commission's recent Consultation Paper on Digital Assets) which do engage these issues are far from reaching consensus. This paper critically examines those views and puts forward its own reasoned approach for the application of traditional rules of title to cryptoassets.

Error 404: looking for trust in international law on digital technologies

ABSTRACT Despite their importance in the ethics of digital technologies, trust and trustworthiness do not appear in the international law on digital technologies. This surprising absence is the point of departure of this paper. On the basis of a survey of philosophical and empirical scholarship on trust in the context of digital technologies (especially AI), the article proceeds by identifying relevant norms in international law which can be considered to operationalise relevant dimensions of trust and trustworthiness. By clustering these norms, a technical conception of trust appears, focused on securing the trustworthiness of an AI system. This conception is based on the framing of an AI system as an agent and on the premise that the role of the law is to promote the uptake of technologies. This technical conception of trust should be enriched by way of three relevant extensions, each addressing in turn: the responsibility of developers, the power relations between users and developers of AI systems, and the benefits associated with the use of AI systems. This extended conception of trust also extends the realm of relevant legal norms that can be used to address AI-powered actions.

Trust Law in Macao: An Organizational Law Account

Trust Law in Macao: An Organizational Law Account

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

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

Wills & Trusts

This article discusses developments relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters during the Survey period of December 1, 2021, through November 30, 2022. The reader is warned that not all cases decided during the Survey period are presented, and not all aspects of each case are analyzed. You must read and study each case’s full text before relying on it or using it as precedent. The discussion of most cases includes a moral, that is, the important lesson to be learned from the case. By recognizing situations that resulted in time-consuming and costly litigation in the past, readers may be able to reduce the likelihood of the same situations arising with their own clients.

The nexus between household consumption, consumer protection, and consumer confidence in European countries. A statistical-mathematical analysis

In this manuscript, the authors face the following research question: do consumer protection and consumer confidence have predictive power on household consumption? In order to provide an answer, the authors adopted a proper mathematical-statistical method. In particular, they collected cross-sectional data on 27 European countries and then estimated a consumption function accounting for both the Post-Keynesian Absolute Income Hypothesis and the Neoclassical Life-Cycle Hypothesis. This consumption function comprises, as a control variable, the Consumer Conditions Index, a measure of consumer protection calculated by the EU Commission. Moreover, the authors distinguished the effects on household consumption of three different aspects of consumer protection: Consumer knowledge of their rights and trust, Compliance and enforcement of consumer law, and Complaints and dispute resolution between consumers and retailers. The authors? findings suggest that consumer protection may represent a transmission channel for consumer confidence.

“Beneficial owner” and “beneficial ownership” in South African trust law: troublesome aspects of the General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act 22 of 2022

Die Wysigingswet op Algemene Wette (Teengeldwassery en Bekamping van Terrorismefinansiering) 22 van 2022 is op 29 Desember 2022 bekragtig. Dié wet wysig, met 1 April 2023 as die inwerkingtredingsdatum van al hierdie wysigings, die Wet op die Beheer oor Trustgoed 57 van 1988 in verskeie opsigte. In hierdie bydrae neem ons twee wysigings onder die loep, naamlik die invoeging van ’n definisie van “uiteindelik geregtigde” (“beneficial owner”) in artikel 1 van Wet 57 van 1988 asook die vaslegging van die idee van “uiteindelike geregtigheid” (“beneficial ownership”) in artikel 11A van daardie wet. Ons voer aan dat beide toevoegings onvanpas is in die Suid-Afrikaanse trustreg aangesien dit nie strook met meerdere van die grondbeginsels van die Suid-Afrikaanse trustreg nie. Ons wys in die besonder daarop dat die wetgewer se gebruik van “uiteindelik geregtigde” en “uiteindelike geregtigheid”: (i) onder inhoudelike onsekerheid gebuk gaan; (ii) nie strook met sommige van Wet 57 van 1988 se bepalings nie, by uitstek die definisie van “trust” in artikel 1 en ’n trustee se sorgplig ingevolge artikel 9; (iii) oënskynlik berus op ’n mistasting oor die regsaard van ’n trust asook die aanvaarde regsbeginsels rakende die misbruik van die trustvorm en skyntrusts en (iv) die gevaar inhou van die voortydige verkryging van regte deur trustbegunstigdes. Ons argumenteer derhalwe dat die wetgewer se gebruik van “uiteindelik geregtigde” en “uiteindelike geregtigheid” in die wysigingswet en Wet 57 van 1988 teoretiese en praktiese onsekerhede skep wat nie alleen die begripsmatige onderbou en samehang van die Suid-Afrikaanse trustreg skaad nie, maar ook dermate uit pas is met sommige van die bestaande wet se bepalings dat hierdie wysigings bykans onmoontlike verpligtinge ten opsigte van die insameling, vaslegging en verslagdoening van inligting (ter nakoming van die – weliswaar prysenswaardige – oogmerke van die wysigingswet) op trustees plaas. Ten einde hierdie kwessies aan te spreek, doen ons ’n alternatiewe – en onses insiens werkbare – wetsbepaling aan die hand wat, alhoewel dit grootliks op die bestaande bewoording van die tersake bepalings van die wysigingswet gegrond is, wegdoen met “uiteindelik geregtigde” en “uiteindelike geregtigheid” terwyl dit steeds uitvoering aan die oogmerke van die wysigingswet gee. Die voorgestelde wetsbepaling spreek in die besonder die problematiek aan met betrekking tot die besit van of doelmatige beheer oor trustbates – wat sentraal tot die idee van ’n “uiteindelik geregtigde” staan. Dit beperk die voorskrifte oor die besit van of doelmatige beheer oor trustbates tot gevalle waarin trustees sinvolle uitvoering aan die tersake wetsbepaling kan gee.

An Overview of Trust Law in Hungary

An Overview of Trust Law in Hungary

Registration of Chinese Trusts: Lessons from English Trust Law

Registration of Chinese Trusts: Lessons from English Trust Law

The Enhanced Role for the Scottish Courts Under a Reformed Trust Law

The Enhanced Role for the Scottish Courts Under a Reformed Trust Law

Confusion, Illusion, or Delusion: The Irreducible Core of the Common Law Trust

Confusion, Illusion, or Delusion: The Irreducible Core of the Common Law Trust

Between stakeholders and shareholders: Pension funds and labour solidarity in the age of sustainability

This article investigates the contribution of pension funds in harnessing the power of finance to achieve social and environmental objectives. After reviewing and discussing the potential and main hurdles to pension fund engagement in Socially Responsible Investment (SRI), the common law approach to shareholder activism is contrasted with the EU law on pension funds and on sustainability-related disclosures and taxonomies. Unlike the US and other common law jurisdictions, where the duties regarding retirement institutions are derived from trust law, EU rules on pension funds governance and investment policies are generally grounded on the more relaxed duties of corporate and financial law. On the one hand, this makes it easier for pension funds to consider the potential impact of environmental, social and governance factors (ESG) on investment decisions. On the other, social and environmental concerns are functionalised for economic purposes, thus reducing the possibilities for a more critical and strategical use of pension funds’ financial power by activists. This also explains why, despite being often participated in by trade unions, the existing governance of pension funds in Europe tends to outsource the management of investment policies to financial operators. While this takes responsibility away from the governing boards of pension funds in terms of their legal duties, the combination of decentralisation and the outsourcing of investment management undermines the possibility for unions to engage in shareholder activism, and to strike a balance between the position of workers as stakeholders and the position of workers as shareholders.

Constraints on the Exercise of Contractual Powers

This article considers a topic largely ignored by the standard contract texts: contractual powers vested, usually without express restraints, in one of the contracting parties. It gathers the leading Commonwealth decisions on the subject and considers the nature and limits of the commonly-implied "default rule" that such powers may not be exercised arbitrarily, unreasonably or for an improper purpose. The author concludes that in the case of substantive principles such as error of law, improper purpose and irrationality, there is no fundamental difference between the interests protected by contract law, trust law and public law – and nor is there any fundamental difference between the tools used by each to provide that protection.

Requisite trust requirements for digital society development

PurposeThis study aims to demonstrate the importance of the requisite trust for the processes of digitalization of business, the state and society in general.Design/methodology/approachThe work is built “from particular to general”. The analysis of many cases of digitalization projects leads to some higher-level principles useful for description most of them – trust, umwelt and complexity.FindingsBased on the analysis of empirical material, the principle of requisite trust is introduced based on the definition of trust through a “relevant umwelt”. In addition, the article examines many aspects of society digitalization processes using cybernetic concepts. It is shown that (1) in the core of digitalization process is the export of the umwelt from human head to a computer (digital umwelt), (2) models used in the digital platforms are not only a reflection of social processes, but have a significant impact on them, like the observers of cybernetics of the second order and (3) umwelt concept is closely related to a social reality concept, meanings are relative and are carried by the communication systems.Research limitations/implicationsThe paper summarized practical and theoretical experience in the field of digital projects and introduced The Law of Requisite Trust. In the future, this principle should be studied more formally in quantitative terms.Originality/valueThe principle of requisite trust, as well as the definition of trust through the relevant umwelt is original. The promotion of trust in organizations and also digital organizations using such instruments as standard of social responsibility (ISO 26000) has high practical value.

The contraction of the definition of beneficiary in Jersey—is it real or imagined?

Abstract Two recent decisions of the Royal Court of Jersey have focused attention on the nature of a beneficiary’s interest under a discretionary trust in Jersey. In Kea Investments Limited v Watson,1 the Court considered whether the interests of a discretionary beneficiary could be distrained upon pursuant to Article 10(11) of the Trusts (Jersey) Law 1984. In Patel & Ors v JTC Trust Company Limited,2 the Master of the Royal Court considered the separate question of whether the Royal Court had the power to impound the interest of a discretionary beneficiary pursuant to Article 46 of the Trusts (Jersey) Law 1984. These decisions provoke thought as to how we must now consider the nature of a discretionary beneficiary’s interest under a Jersey trust. While being separate and distinct decisions, they arguably share a common thread as they demonstrate the Royal Court indirectly adopting a contextual and/or purposive approach when construing the definition of a ‘beneficiary’ in the Trusts (Jersey) Law 1984, in order to meet the justice of the case.

The Role of True and Counterfeit Intentions in Creating Trusts

The aim of this paper is to illustrate Denis Ong’s facility for identifying the hard questions of trusts law with reference to his analysis, in Trusts Law in Australia, of a settlor’s intention to create a trust. As we will see, this is not a simple matter of ascertaining, from writing or other evidence, that an intention to create a trust has been manifested. A court may have to go further in some cases and consider whether the settlor possessed a genuine intention to create a trust, or whether the intention is, in some sense, counterfeit. This may be because the putative trust is a sham. Even if it is not a sham, there may be other reasons why the arrangement put in place by a settlor cannot be characterised as a trust. Recent decisions, considered later in this paper, have highlighted the distinction between true and counterfeit intention.

The Issue of Trust in Civil Law

Public life transformation, including transformation caused by digitalization processes and expansion of remote interaction capabilities, determines changes in essential features of trust and conditions for its formation and manifistation. Today, the priority task is to create an environment of trust in the digital sphere and beyond it to ensure progress and social development. Various civil law mechanisms can contribute to this, including consistent implementation of the principle of good faith, development of the institute of business reputation, formation of civil law communities, including virtual ones with a special nature of interconnections, improvement and expansion of the use of blockchain technology. Trust formation should contribute to the implementation of a generally permissive method of civil law regulation of relations, including those arising in the digital sphere. Certain difficulties are associated with the fact that the concept of trust is not disclosed in the current legislation. The category of trust in civil law is usually considered in a narrow sense in relation to cases of personal trust relations between subjects when they make fiduciary transactions, although civil law also knows the concepts of fiduciary property, fiduciary duties and responsibility. Trust between the participants of the civil turnover is assumed, but its low level entails risks associated with the choice of a counterparty. In this regard, judicial practice develops a standard of prudent behavior expected from a reasonable participant in comparable circumstances, which is taken into account in tax legal relations. In the future, civil legislation and judicial practice should follow the path of improving the mechanisms of influencing public relations, contributing to the formation of an environment of trust and protection of participants in civil turnover from unfair and illegal actions.

Re-exploring the nature of dual ownership in English trusts: a Scottish law perspective

Abstract Owing to the unique social and historical background, the ownership of trust assets of English trusts is divided into two parts, namely the ownership in common law, which is held by the trustee, and the ownership in equity which is held by the beneficiary. In consideration of the unified ownership principle in civil law jurisdiction, most scholars argued that there is no theoretical compatibility between the common law trust and civil law tradition. This article aims to re-explain the legal nature and economic functions of the dual ownership structure of English trusts by re-considering the origins of the trust in medieval England and comparing the practices of quasi-trust regimes in continental and mixed jurisdictions, and finally this article argues that the success of the Scottish trust in functioning as an equivalent asset management mechanism to the English trust may have provided an answer to the above paradox.

Under the hood of the draft Swiss trust law

Abstract Will trusts soon be part of Swiss private law? The Swiss government has recently published a draft bill for public consultation. This article presents its main features. It looks in some depth at the legal design of the proposal and how it fits into Switzerland’s civil law system. Neither a contract nor a legal entity, the proposed trust is a separate, ring-fenced fund legally owned by the trustee in the exclusive interest of the beneficiaries. Beneficiaries are protected by a broad set of personal claims against the trustee (and potentially against unprotected third-party acquirers) and by the court’s supervisory jurisdiction.