Trusts in the Draft Common Frame of Reference: The ‘Best Solution’ for Europe?
Cambridge Law Journal, Vol. 70, pp. 327-352, 2011
Posted: 18 Jul 2011
Date Written: July 1, 2011
In March 2009 two international research groups produced a draft of a Common Frame of Reference (DCFR) which included among others a book, Book X, on trusts. Book X suggests a comprehensive set of model rules aimed at providing Europe with a uniform trust law. This article offers a critical evaluation of Book X of the DCFR in an attempt to ascertain not only whether it provides a desirable device, but also why there is a book on trust law at all, given that the whole purpose of the exercise was to present a draft for the establishment of common principles on contract law. In order to do so, the paper first analyses the provisions of Book X in comparison with English law, the Hague Trusts Convention and the Principles of European Trust Law, so as to establish the nature of the trust proposed. Second, it probes the internal coherence of Book X and its compatibility with existing conflict of law rules and national private laws, both as an optional instrument or a set of mandatory rules.
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