CONVENTION ON THE LAW APPLICABLE TO TRUSTS AND ON THEIR
RECOGNITION
(Concluded 1 July 1985)
The States
signatory to the present Convention,
Considering that
the trust, as developed in courts of equity in common law jurisdictions and
adopted with some modifications in other jurisdictions, is a unique legal
institution,
Desiring to
establish common provisions on the law applicable to trusts and to deal with
the most important issues concerning the recognition of trusts,
Have resolved to
conclude a Convention to this effect, and have agreed upon the following
provisions -
chapter i - scope
Article 1
This Convention
specifies the law applicable to trusts and governs their recognition.
Article 2
For the purposes
of this Convention, the term "trust" refers to the legal
relationships created - inter vivos or
on death - by a person, the settlor, when assets have been placed under the
control of a trustee for the benefit of a beneficiary or for a specified
purpose.
A trust has the
following characteristics -
a) the assets constitute a separate
fund and are not a part of the trustee's own estate;
b) title to the trust assets
stands in the name of the trustee or in the name of another person on behalf of
the trustee;
c) the trustee has the power and
the duty, in respect of which he is accountable, to manage, employ or dispose
of the assets in accordance with the terms of the trust and the special duties
imposed upon him by law.
The reservation
by the settlor of certain rights and powers, and the fact that the trustee may
himself have rights as a beneficiary, are not necessarily inconsistent with the
existence of a trust.
Article 3
The Convention
applies only to trusts created voluntarily and evidenced in writing.
Article 4
The Convention
does not apply to preliminary issues relating to the validity of wills or of
other acts by virtue of which assets are transferred to the trustee.
Article 5
The Convention
does not apply to the extent that the law specified by Chapter II does not
provide for trusts or the category of trusts involved.
chapter ii -
applicable law
Article 6
A trust shall be
governed by the law chosen by the settlor. The choice must be express or be
implied in the terms of the instrument creating or the writing evidencing the
trust, interpreted, if necessary, in the light of the circumstances of the
case.
Where the law
chosen under the previous paragraph does not provide for trusts or the category
of trust involved, the choice shall not be effective and the law specified in
Article 7 shall apply.
Article 7
Where no
applicable law has been chosen, a trust shall be governed by the law with which
it is most closely connected.
In ascertaining
the law with which a trust is most closely connected reference shall be made in
particular to -
a) the place of administration of the
trust designated by the settlor;
b) the situs of the assets of the
trust;
c) the place of residence or
business of the trustee;
d) the objects of the trust and
the places where they are to be fulfilled.
Article 8
The law
specified by Article 6 or 7 shall govern the validity of the trust, its
construction, its effects, and the administration of the trust.
In particular
that law shall govern -
a) the appointment, resignation and
removal of trustees, the capacity to act as a trustee, and the devolution of
the office of trustee;
b) the rights and duties of
trustees among themselves;
c) the right of trustees to
delegate in whole or in part the discharge of their duties or the exercise of
their powers;
d) the power of trustees to
administer or to dispose of trust assets, to create security interests in the
trust assets, or to acquire new assets;
e) the powers of investment of
trustees;
f) restrictions upon the duration
of the trust, and upon the power to accumulate the income of the trust;
g) the relationships between the
trustees and the beneficiaries including the personal liability of the trustees
to the beneficiaries;
h) the variation or termination of
the trust;
i) the distribution of the trust
assets;
j) the duty of trustees to account
for their administration.
Article 9
In applying this
Chapter a severable aspect of the trust, particularly matters of
administration, may be governed by a different law.
Article 10
The law
applicable to the validity of the trust shall determine whether that law or the
law governing a severable aspect of the trust may be replaced by another law.
chapter iii -
recognition
Article 11
A trust created
in accordance with the law specified by the preceding Chapter shall be
recognised as a trust.
Such recognition
shall imply, as a minimum, that the trust property constitutes a separate fund,
that the trustee may sue and be sued in his capacity as trustee, and that he
may appear or act in this capacity before a notary or any person acting in an
official capacity.
In so far as the
law applicable to the trust requires or provides, such recognition shall imply,
in particular -
a) that personal creditors of the
trustee shall have no recourse against the trust assets;
b) that the trust assets shall not
form part of the trustee's estate upon his insolvency or bankruptcy;
c) that the trust assets shall not
form part of the matrimonial property of the trustee or his spouse nor part of
the trustee's estate upon his death;
d) that the trust assets may be
recovered when the trustee, in breach of trust, has mingled trust assets with
his own property or has alienated trust assets. However, the rights and
obligations of any third party holder of the assets shall remain subject to the
law determined by the choice of law rules of the forum.
Article 12
Where the
trustee desires to register assets, movable or immovable, or documents of title
to them, he shall be entitled, in so far as this is not prohibited by or
inconsistent with the law of the State where registration is sought, to do so
in his capacity as trustee or in such other way that the existence of the trust
is disclosed.
Article 13
No State shall
be bound to recognise a trust the significant elements of which, except for the
choice of the applicable law, the place of administration and the habitual
residence of the trustee, are more closely connected with States which do not
have the institution of the trust or the category of trust involved.
Article 14
The Convention
shall not prevent the application of rules of law more favourable to the
recognition of trusts.
chapter iv -
general clauses
Article 15
The Convention
does not prevent the application of provisions of the law designated by the
conflicts rules of the forum, in so far as those provisions cannot be derogated
from by voluntary act, relating in particular to the following matters -
a) the protection of minors and
incapable parties;
b) the personal and proprietary
effects of marriage;
c) succession rights, testate and
intestate, especially the indefeasible shares of spouses and relatives;
d) the transfer of title to
property and security interests in property;
e) the protection of creditors in
matters of insolvency;
f) the protection, in other
respects, of third parties acting in good faith.
If recognition
of a trust is prevented by application of the preceding paragraph, the court
shall try to give effect to the objects of the trust by other means.
Article 16
The Convention
does not prevent the application of those provisions of the law of the forum
which must be applied even to international situations, irrespective of rules
of conflict of laws.
If another State
has a sufficiently close connection with a case then, in exceptional
circumstances, effect may also be given to rules of that State which have the
same character as mentioned in the preceding paragraph.
Any Contracting
State may, by way of reservation, declare that it will not apply the second
paragraph of this Article.
Article 17
In the
Convention the word "law" means the rules of law in force in a State
other than its rules of conflict of laws.
Article 18
The provisions
of the Convention may be disregarded when their application would be manifestly
incompatible with public policy (ordre
public).
Article 19
Nothing in the
Convention shall prejudice the powers of States in fiscal matters.
Article 20
Any Contracting
State may, at any time, declare that the provisions of the Convention will be
extended to trusts declared by judicial decisions.
This declaration
shall be notified to the Ministry of Foreign Affairs of the Kingdom of the
Netherlands and will come into effect on the day when this notification is
received.
Article 31 is
applicable to the withdrawal of this declaration in the same way as it applies
to a denunciation of the Convention.
Article 21
Any Contracting
State may reserve the right to apply the provisions of Chapter III only to
trusts the validity of which is governed by the law of a Contracting State.
Article 22
The Convention
applies to trusts regardless of the date on which they were created.
However, a
Contracting State may reserve the right not to apply the Convention to trusts
created before the date on which, in relation to that State, the Convention
enters into force.
Article 23
For the purpose
of identifying the law applicable under the Convention, where a State comprises
several territorial units each of which has its own rules of law in respect of
trusts, any reference to the law of that State is to be construed as referring to
the law in force in the territorial unit in question.
Article 24
A State within
which different territorial units have their own rules of law in respect of
trusts is not bound to apply the Convention to conflicts solely between the
laws of such units.
Article 25
The Convention
shall not affect any other international instrument containing provisions on
matters governed by this Convention to which a Contracting State is, or
becomes, a Party.
chapter v -
final clauses
Article 26
Any State may,
at the time of signature, ratification, acceptance, approval or accession, or
at the time of making a declaration in terms of Article 29, make the
reservations provided for in Articles 16, 21 and 22.
No other
reservation shall be permitted.
Any Contracting
State may at any time withdraw a reservation which it has made; the reservation
shall cease to have effect on the first day of the third calendar month after
notification of the withdrawal.
Article 27
The Convention
shall be open for signature by the States which were Members of the Hague
Conference on Private International Law at the time of its Fifteenth Session.
It shall be
ratified, accepted or approved and the instruments of ratification, acceptance
or approval shall be deposited with the Ministry of Foreign Affairs of the
Kingdom of the Netherlands.
Article 28
Any other State
may accede to the Convention after it has entered into force in accordance with
Article 30, paragraph 1.
The instrument
of accession shall be deposited with the Ministry of Foreign Affairs of the
Kingdom of the Netherlands.
The accession
shall have effect only as regards the relations between the acceding State and
those Contracting States which have not raised an objection to its accession in
the twelve months after the receipt of the notification referred to in Article
32. Such an objection may also be raised by Member States at the time when they
ratify, accept or approve the Convention after an accession. Any such objection
shall be notified to the Ministry of Foreign Affairs of the Kingdom of the
Netherlands.
Article 29
If a State has
two or more territorial units in which different systems of law are applicable,
it may at the time of signature, ratification, acceptance, approval or
accession declare that this Convention shall extend to all of its territorial
units or only to one or more of them and may modify this declaration by
submitting another declaration at any time.
Any such
declaration shall be notified to the Ministry of Foreign Affairs of the Kingdom
of the Netherlands and shall state expressly the territorial units to which the
Convention applies.
If a State makes
no declaration under this Article, the Convention is to extend to all
territorial units of that State.
Article 30
The Convention
shall enter into force on the first day of the third calendar month after the
deposit of the third instrument of ratification, acceptance or approval
referred to in Article 27.
Thereafter the
Convention shall enter into force -
a) for each State ratifying,
accepting or approving it subsequently, on the first day of the third calendar
month after the deposit of its instrument of ratification, acceptance or
approval;
b) for each acceding State, on the
first day of the third calendar month after the expiry of the period referred
to in Article 28;
c) for a territorial unit to which
the Convention has been extended in conformity with Article 29, on the first
day of the third calendar month after the notification referred to in that
Article.
Article 31
Any Contracting
State may denounce this Convention by a formal notification in writing
addressed to the Ministry of Foreign Affairs of the Kingdom of the Netherlands,
depositary of the Convention.
The denunciation
takes effect on the first day of the month following the expiration of six
months after the notification is received by the depositary or on such later
date as is specified in the notification.
Article 32
The Ministry of
Foreign Affairs of the Kingdom of the Netherlands shall notify the States
Members of the Conference, and the States which have acceded in accordance with
Article 28, of the following -
a) the signatures and ratifications,
acceptances or approvals referred to in Article 27;
b) the date on which the
Convention enters into force in accordance with Article 30;
c) the accessions and the
objections raised to accessions referred to in Article 28;
d) the extensions referred to in
Article 29;
e) the declarations referred to in
Article 20;
f) the reservation or withdrawals
referred to in Article 26;
g) the denunciations referred to
in Article 31.
In witness
whereof the undersigned, being duly authorised thereto, have signed this
Convention.
Done at The
Hague, on the first day of July, 1985, in English and French, both texts being
equally authentic, in a single copy which shall be deposited in the archives of
the Government of the Kingdom of the Netherlands, and of which a certified copy
shall be sent, through diplomatic channels, to each of the States Members of
the Hague Conference on Private International Law at the date of its Fifteenth
Session.
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