Trust in European law
The paper focuses on different ways of reception of the Anglo-American trust in Civil law jurisdictions. It starts from the "irreducible core" of the original trust. The features constituting the trust paradigm are confronted with basic principles of the Civil law such as numerus clausus, "specificity" and "publicity" of the property rights in Civilian laws. In particular the concept of "one and all-embracing" ownership in the Civil law constitutes an obstacle for introducing the actual trust into continental legal systems. Furnishing the trustee with the ownership right of trust assets excludes providing the beneficiary with the same. Lack of the beneficial ownership reduces the protection of the trust beneficiary to "unjustified enrichment" remedy substantially weaker than property protection conferred on the trustee as owner of the trust assets. From that perspective several attempts were considered - undertaken on internal and in particular on an international level - aimed at the introduction of a trust acceptable for both legal traditions i.e. Common law and Civil law. The scope covers the 1985 Hague Convention on Trusts and their Recognition, the Draft EU Directive on "protected funds" and the Draft of the Common Frame of Reference (DCFR) being a draft of the EU-wide Civil Code. International regulations (or their drafts) are accompanied by some representative domestic endeavours towards trusts such as the Italian trust interno anchored to the Hague Convention and Luxembourg 2003 Law on Trusts and Fiduciary Agreements, whereas both examples are rather illustrative than exhaustive. The need for recognition related to trusts established under separate, domestic regulations speaks undoubtedly in favor of the international harmonization of the trust law. (original abstract)
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