The Framing of a European Law of Trusts
L. Smith (ed.), The Worlds of the Trust (CUP, Cambridge 2013) 277-304
Posted: 21 Oct 2013
Date Written: October 20, 2013
Since the Hague Convention on the Law Applicable to Trusts and on their Recognition came into force in 1992, trust law within the European Union has undergone a fascinating evolution. Some European legislatures have reformed already existing trust instruments, while others have introduced new domestic devices aimed at rendering their financial markets more competitive. As a consequence, the list of fiduciary instruments available within Europe has increased. This development has been seen by some as an obstacle to the free movement of capital and services as well as the mutual recognition, and it has been suggested that trust law should be rendered uniform within Europe.
In 2009, the outcomes of two academic research projects were published suggesting that uniform instruments be introduced in the European Union. Although the aim and the scope of the two projects are inherently different, they both suggest a uniform fiduciary device for Europe. It would thus seem that the Hague Trusts Convention aimed at harmonizing trust law at the level of conflict of laws, has ultimately prepared the ground for proposals envisaging the harmonization of trust law at a substantive level. But is there a need for a European law of trusts? Do we have enough evidence to support such a claim and, if so, is the time ripe for an intervention of the European legislature?
This chapter addresses these questions by taking a closer look both at the events that have occurred within Europe in the aftermath of the coming into force of the Hague Trusts Convention, and at the nature and essential features of the instruments propounded. In doing so it examines both the feasibility of the two instruments, as well as the need for a unification of this area of the law.
Keywords: Trusts, Hague Trusts Convention, harmonization, DCFR, protected funds
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