A code of good governance for trusts and trustees : analysis and proposal

Abstract

The scope of the thesis is to analyse how the governance of trusts is put into practice as a result of the various provisions under the Trust and Trustees Act and analyse the extent to which there might be the need to augment the effective governance of trusts and make a proposal for a Code of Good Governance of Trusts and Trustees. By way of introduction, Chapter 1 will present what a trust is whilst elaborating on the concept of good governance, placed on the backdrop of the Trusts and Trustees Act, principles of Corporate Governance of Companies and the Hague Convention on the Law Applicable to Trusts and on their Recognition. Chapter 2 shall pose the question whether there is a basis for an effective governance framework within the existing legislative structures, whilst Chapter 3 shall discuss the important principle of transparency and disclosures in the context of good governance and whether the existing Trust Law is congruent with such a principle of good governance. Chapter 4 shall present an overall assessment of good governance with a comparative review between corporate good governance and the existing governance measures at law. Conclusions will be presented in Chapter 5, together with a proposed Code of Good Governance of Trusts and Trustees which would best fit the institution of trusts and which will address identified gaps between the governance measures already present in the Trusts and Trustees Act, and the accompanying Code of Conduct, compared to a more comprehensive set of good governance principles which will provide (a) assurance that the purpose of the trust is clear and unequivocal(written), (b) roles and responsibilities which are more clearly defined in the trust instrument, (c) a requirement for a higher degree of risk recognition and risk management, (d) pressure in having policies and procedures documented, (e) for timely decision taking, (f) for a framework that ensures integrity and compliance in the administration of the trust, and (g) charity trusts to adopt a higher degree of transparency to ensure greater trust integrity.