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She Sells Sanctuary

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She Sells Sanctuary FIREWALL LEGISLATION ASHLEY FIFE SHE SELLS SANCTUARY An overview of the current state of Bermuda’s firewall legislation and its recent trust law reforms BY ASHLEY FIFE ABSTRACT WHAT IS AN ASSET PROTECTION TRUST? A trust is not a legal person. An ‘express trust’ • To what extent are assets in trusts existing refers to the legal relationship created, either under the laws of an ‘offshore’ international inter vivos or on death, by a person (the settlor) financial centre (IFC) sheltered from claims made when assets have been placed under the control under other jurisdictions’ laws against settlors, of a trustee for the benefit of a beneficiary or for beneficiaries, trustees or trust property? Many a specified purpose.2 IFCs have experienced challenges drafting clear, There is no legal definition of an asset effective and appropriate firewall legislation. protection trust under Bermuda law or under the laws of most other jurisdictions. An asset • This article considers factors relevant to the protection trust might be described as an protection that firewall legislation provides to express trust with specific terms that aim to trust property; primarily from the perspective protect the trust property from claims brought of Bermuda, which recently updated the firewall against the trust’s settlor or beneficiaries. provisions contained in the Trusts (Special The asset protection qualities of the trust Provisions) Act 1989 (the Act). 1 are also impacted by conflict of laws rules of the governing law of the trust and fraudulent • The article also outlines competing policy transfer legislation. However, asset protection considerations and practical realities that is rarely the sole reason a person might wish legislatures weigh up when developing, to form a trust. One might say that the primary and courts consider when applying, IFC reason trusts remain attractive to most private firewall legislation. clients is the flexibility they provide for 1 Amendments to the firewall provisions in ss.10 and 11 of the Act were long‑term succession planning. made by the Trusts (Special Provisions) Amendment Act 2020 that became operative on 5 August 2020. 2 See s.2 of Bermuda’s Trusts (Special Provisions) Act 1989 JUNE 2021 43 WWW.STEP.ORG/TQR FIREWALL LEGISLATION ASHLEY FIFE CONFLICT OF LAWS ‘In some instances, firewall Conflict of laws rules are procedural rules applied by a court (the Domestic Court) that legislation might be has jurisdiction to determine an issue having a connection with another jurisdiction (a foreign regarded as inconsistent jurisdiction) to ultimately determine whether to with the Convention if not apply the substantive laws (i.e., a jurisdiction’s laws without reference to its procedural, including ‘manifestly incompatible’ conflict of laws, rules) of: • the jurisdiction in which the Domestic Court is with matrimonial property situated (Domestic Laws); or • a foreign jurisdiction (Foreign Laws). regimes or decisions of The connecting factor with a foreign jurisdiction Member States’ might be, for example, that the defendant is resident or domiciled in a foreign jurisdiction or that the property (which is the subject of the issue or dispute) is situated in a foreign jurisdiction. Further, even if a Member State has ratified the In common‑law jurisdictions, the source of Convention, this does not necessarily mean that conflict of laws rules is the common law (including the provisions have been included verbatim into customary law where applicable, such as in its Domestic Law, or included at all.3 Article 18 of Guernsey and Jersey) as reiterated, clarified or the Convention provides that a Member State is varied by domestic statutes and international not required to apply provisions of the Convention conventions and statute, including, where to the extent that doing so would be ‘manifestly applicable, EU law. incompatible’ with the public policy in the Member State. Further, each Member State’s court may THE RELEVANCE OF THE HAGUE have different levels of experience in trust cases TRUSTS CONVENTION and may not interpret or apply the Convention’s The Hague Conference on Private International provisions in the same way. Law (HCCH) developed a multilateral treaty Certain provisions of the Convention were known as the Hague Convention of 1 July 1985 on the introduced into the laws of Bermuda, the British Law Applicable to Trusts and on their Recognition Virgin Islands and certain other British Overseas (the Convention) to address issues concerning the Territories by the UK’s Recognition of Trusts Act non‑recognition of the concept of trusts in civil‑law 1987 (Overseas Territories) Order 1989,4 made jurisdictions and paucity of clear and appropriate under the Recognition of Trusts Act 1987. conflict of laws rules in relation to trusts. In some instances, firewall legislation might be Thirty‑one of the 87 HCCH Member States regarded as inconsistent with the Convention if have approved the Convention, but only a small not ‘manifestly incompatible’ with matrimonial number of Member States have ratified it or property regimes or decisions of Member States. enacted legislation to introduce some or all of the For example, the power of the Family Division of Convention’s provisions into Domestic Law. the England and Wales High Court to vary and The Convention represents a positive step make orders, in respect of trusts governed by laws towards developing consistent conflict of of other jurisdictions, may be directly at odds laws rules applicable to trusts. In summary, it with art.8 of the Convention,5 which provides that provides that once a trust is validly established, the governing law of the trust ‘shall govern the the existence and governing law of the trust will validity of the trust, its construction, its effects, be respected. However, it does not deal with the 3 See for consideration of an example, Toby Graham, ‘The Hague Trusts law that is to apply to questions concerning the Convention Five Years On: The Swiss Federal Supreme Court’s decision in Rybolovlev v Rybolovleva’, Trusts and Trustees, 18:8 (September 2012), pp.746–755 governing law applicable to the formation and 4 1989/673 transfers into the trust. 5 Under s.24(1)(c) of the Matrimonial Causes Act 1973 JUNE 2021 44 WWW.STEP.ORG/TQR FIREWALL LEGISLATION ASHLEY FIFE and the administration of the trust’, but justified in the Conveyancing Act 1983. Guernsey and Jersey England and Wales on public policy grounds. have not included provisions from the Statute of Elizabeth into their legislation and do not have WHAT IS THE OBJECTIVE OF fraudulent transfer legislation. Creditors may FIREWALL LEGISLATION? explore whether they may set aside transfers The objective of firewall legislation, in summary, is into a Guernsey or Jersey law trust by bringing a to clarify, reiterate or vary Domestic Law conflict ‘Pauline action’, which is derived from Roman law of laws rules applicable to trusts governed by as developed by French customary law. Domestic Law (Domestic Law Trusts) to: • require that Domestic Law shall apply to JURISDICTION determine certain questions relating to the The question of forum or jurisdiction is intimately formation, validity and administration of related to conflict of laws rules. A court might Domestic Law Trusts; and determine, based on its conflict of laws rules • prevent the recognition or enforcement of (being procedural rules) or its interpretation of an orders made by courts other than the Domestic exclusive jurisdiction clause in a contract or deed, Court (i.e., a foreign court) and in some that it does not have jurisdiction to determine the jurisdictions, including Bermuda, awards of issue or dispute in question. However, if a court arbitrators or tribunals in a foreign jurisdiction does determine that it has jurisdiction, a court in (collectively, Foreign Orders) in relation to a common‑law jurisdiction will apply its conflict property held pursuant to Domestic Law Trusts of laws rules and determine whether to apply where they are inconsistent with Domestic Law substantive Domestic Law or substantive Foreign firewall legislation. Law to determine a question. In circumstances where a court determines to apply substantive WHAT IS THE OBJECTIVE OF FRAUDULENT Foreign Law, expert evidence would ordinarily TRANSFER LEGISLATION IN A TRUST CONTEXT? be required by the Domestic Court in respect of In relation to trusts, the objective of fraudulent how the Foreign Law ought to be applied to the transfer legislation is to require the Domestic relevant facts. Court to apply Domestic Law to determine: Cases in recent years have considered whether • whether a creditor is eligible to have transfers and to what extent statutory provisions and (i.e., dispositions) into a Domestic Law Trust specific provisions in trust instruments may made at an undervalue set aside; mandate jurisdiction to a particular court. The • limitation periods within which eligible decision of Crociani v Crociani largely turned on creditors may bring claims to set aside such a construction of the ‘forum for administration’ transfers; and clause in the trust instrument.7 The clause was • rights of trustees, beneficiaries and others who determined not to confer exclusive jurisdiction on received transfers or distributions in good faith. a particular court.8 However, the court also notably As with firewall legislation, the location of the held that: property that has been transferred into the trust or • an exclusive jurisdiction clause in a trust distributed from it will impact on how successfully instrument is not binding on a court; and Domestic Law may be able to apply to resist • it will be easier for a beneficiary (who enforcement of Foreign Orders in relation to would not ordinarily be a signatory to the such property. trust instrument) to resist enforcement of The historical basis of many common‑law an exclusive jurisdiction clause in a trust jurisdictions’ fraudulent transfer legislation is the instrument than it would be for a party to a Fraudulent Conveyances Act 1571,6 also known as contract to resist enforcement of a contract the Statute of Elizabeth.
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