Trusts in Europe

Abstract

This dissertation examines the institute of Trusts. It introduces the trust from a historical perspective, examines the way in which the trust under English Law has developed, and it traces the origin of the trusts in the common law concept of the "use". An in-depth examination is made of the Trust under English Law. The following five main features of the English model (express) trust are examined: • The transfer of a right to the trustee or a unilateral declaration of trust; • The lack of confusion between the right transferred to the trustee and other elements of his estate; • The loss by the settlor of any power over the trust assets as a natural consequence of their transfer to the trustee; • The existence of beneficiaries or a purpose, and the resulting functionalism of the exercise of the right transferred to the trustee; • The imposition of a fiduciary component upon the exercise of the right, with particular reference to conflicts of interest. Extensive reference is made to selected English case law on the subject, with a view towards illustrating the main features of the English model trust. The dissertation then examines the main provisions of the Hague Convention on the Law Applicable to Trusts and their Recognition (1985). Reference is made to those provisions, mainly contained in Chapter 1 of the Convention, which deal with the main features of the trust for the purposes of the Convention. Subsequently, a brief examination of the applicable law in Italy is presented. Reference is made to some provisions of the Italian Civil Code dealing with institutes which, though not purporting to create a trust as traditionally intended for the purposes of English law, might arguably be said to refer to institutes analogous to trusts. Furthermore, the dissertation also outlines the features of Italian law and practice following the ratification of the Hague Convention on the Law Applicable to Trusts and their Recognition. In conclusion, this dissertation examines the move, at European Union level, towards determining whether it is advisable, or indeed necessary, to seek to formulate a single European Trust Model, also in view of the fact that, following the ratification of the Hague Convention by Civil Law States, homogeneity has not been created since this Convention does not lay down the rules for a single trust model, but rather provides for the recognition of trusts created in accordance with the rules of a foreign State.