Despite the common belief that they are found only in the common law tradition, trusts have long been known in mixed jurisdictions even where they have a civilian law of property. Trusts have now been introduced by legislation in a number of civilian jurisdictions, such as France and China. Other recent developments include the reception of foreign trusts through private international law in Italy and Switzerland and the inclusion of a chapter on trusts in Europe's Draft Common Frame of Reference. As a result, there is a growing interest in the ways in which the trust can be accommodated in civil law systems. This collection explores this question, as well as general issues such as the juridical nature of the trust, the role and qualifications of the trustee and particular developments in specific jurisdictions.
• Showcases new scholarship in comparative trust law • Explores aspects of the law of trusts in civilian and mixed jurisdictions and demonstrates the ways in which such jurisdictions can choose to incorporate the trust • Provides expert analysis in English of newly-created aspects of trust law in China, France and Switzerland
Contents
1. Trusts: the essentials Lusina Ho; 2. The civil law trust: a modality of ownership, or an interlude in ownership? Yaëll Emerich; 3. How to square the circle: the challenge met by Swiss insolvency law in dealing with common law trusts Aude Peyrot; 4. Can a modern legal system do without the trust? Reinout Wibier; 5. Stateless trusts Lionel Smith; 6. The security fiducie in French law François Barrière; 7. The trustee: mainspring, or only a cog, in the French fiducie? Blandine Mallet-Bricout; 8. British colonial law and the establishment of family waqfs by Arabs in the Straits Settlements, 1860–1941 Nurfadzilah Yahaya; 9. Zionist settlers and the English private trust in Mandate Palestine Adam Hofri-Winogradow; 10. Jurisprudential milestones in the development of trust law in South Africa's mixed legal system François du Toit; 11. The framing of a European law of trusts Alexandra Braun; 12. The dilution of the trust Gregory Alexander; 13. The compatibility of the trust with the civil law notion of property Paul Matthews; 14. Categorically different: unintended consequences of trust taxonomy Michael Lubetsky; 15. Why civil law countries might forego the individual trustee: provocative insights from the new-to-the-fold Iris Goodwin; 16. The contribution of fiduciary law Thomas Gallanis; 17. Convergence and divergence in the worlds of the trust: duties and liabilities of trustees under the Chinese trust Rebecca Lee; 18. Trust law as fiduciary governance plus asset partitioning Robert Sitkoff; 19. Parallels between the civilian separate patrimony, real subrogation and the idea of property in a trust fund Magdalena Raczynska; 20. Rights against rights and real obligations Remus Valsan; 21. The trust and its civilian analogues Ben McFarlane; 22. Up there in the Begriffshimmel? George Gretton.
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