A private international law of trusts : jurisdiction and choice of law in trust proceedings

Abstract

The aim of this thesis is to elucidate the questions which are bound to arise in view of the so-called 'multistate' trusts i.e. trusts having significant contacts or relationships with more than one state. In the event of an action involving a multistate trust being filed with the forum court, the latter will generally undertake a multi-step process before ruling on the substantive issue. The most important features of this process clearly involve determining which 'forum' has jurisdiction to determine the matter in issue and, subsequently, which law applies to such issue and regulates it. Departing from a historical justification of the trust instrument and resolving itself with reference to the modem day uses of trusts internationally, the introductory chapter seeks to lay down the general foundations for the discussion by justifying private international law provisions in the particular regime of trust law in any given state. Reference is thus made to the common law - continental law debate regarding trusts by way of revealing the need for harmonization as exemplified hy hoth the RC Regulation 44/?.001 :'mrl the Hague Trusts Convention, the latter being described as the most significant event in the development of the international recognition of trusts. In practice, classification constitutes an essential private international law aspect of the trust relationship given that it allows the court to conclude in the first place whether it is faced with a trust question at all rather than with a question concerning tort or contract or succession. The analysis of the 'launcher-rocket' metaphor formulated by the Hague Conference as well as of the 'gateway definition' of trusts under the latter provide some answers to the above dilemmas. Chapter One will also indulge into the main features of the law applicable to such preliminary issues.