Trusts Jurisdiction Clauses: An Analysis

Law Quarterly Review, Forthcoming

25 Pages Posted: 14 May 2024

See all articles by Ying Khai Liew

Ying Khai Liew

University of Melbourne - Melbourne Law School

Richard Garnett

University of Melbourne - Law School

Date Written: 2024

Abstract

While jurisdiction clauses, or choice of court agreements, are increasingly utilised in trust deeds, the common law rules which apply to these clauses are far from clear. In comparison to the contractual context, the use of jurisdiction clauses in the trusts context is relatively more recent, and the relevant authorities are sparse. This situation is a source of concern, since the present state of the law detracts from the very reason for which a jurisdiction clause is frequently used in modern trusts practice, namely, the attainment of certainty. Therefore, it is important that this area of law is properly analysed, and its principles carefully stated. This article begins first by discussing the contractual position, since the rules which apply in that context are often adopted, adapted, or taken as a point of comparison in trusts cases. It then discusses the three relevant questions which arises in relation to jurisdiction clauses in the trusts context, namely the existence, scope, and enforceability of a jurisdiction clause. The final section concludes the article.

JEL Classification: K1, K10, K19

Suggested Citation

Liew, Ying Khai and Garnett, Richard, Trusts Jurisdiction Clauses: An Analysis ( 2024). Law Quarterly Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4788252 or http://dx.doi.org/10.2139/ssrn.4788252

Ying Khai Liew (Contact Author)

University of Melbourne - Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Richard Garnett

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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