Insights into Trust : The Channel Islands and beyond Friday 26 October 2012

A Swiss View of Channel Island Trusts

Prof. Luc Thévenoz

Sponsored by Insights into : The Channel Islands and beyond Friday 26 October 2012

Sponsored by Insights into Trust Law: The Channel Islands and beyond Friday 26 October 2012

Relative size of financial services in the economy

Jersey + Guernsey

GDP 4.4 bn£ 385 bn£

Financial services % GDP 40.5% 10.5%

Workforce 89,000 3,400,000

Financial services % employment 22% 6%

Financial Secrecy Index Jersey: 78 78 (www.financialsecrecyindex.com) Guernsey: 65

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“Swiss View of Channel Island Trusts”

• Soft spot • Unavoidable tensions • Concerns

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Soft spot – Practical reasons

• Location • European-ness without EU • Multi-office trust companies

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Soft spot – Legal reasons 1/2

• Statutory “codification” • Regular upgrades • No (explicit) recourse to equitable concepts • Complex notions boiled down to provisions understandable by civil lawyers

Sponsored by Insights into Trust Law: The Channel Islands and beyond Friday 26 October 2012 OD Bank in liquidation (1994) • WK Rey was and of a Guernsey trust over the two holding companies through which he controlled his empire • Rey’s personal creditors seek to have the shares of the two holding companies included in his estate in The District Court of Zurich - • applied Guernsey law in accordance with the terms of the trust • found that Rey never wanted to release control over the assets and implement the trust • followed Rahman v Chase Bank (CI) Trust Co. Ltd. (Jersey 1990) and declares the trust to be a sham

Sponsored by Insights into Trust Law: The Channel Islands and beyond Friday 26 October 2012 Soft spot – Legal reasons 2/2 • regulation: Channel Islands as possible models • Small opening for arbitration of trust disputes See Trusts (Guernsey) Law, s63 (7) - terms of a trust may subject claims against trustee for breach of trust to arbitration - award binding on all beneficiaries if represented in or notified of the proceedings

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Tensions – Traditional conflict of

✗Trust Marital property Estate

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Tensions – Trusts, marital property, and heirship rights

rules of Trust conflict Marital property

Estate

Sponsored by Insights into Trust Law: The Channel Islands and beyond Friday 26 October 2012 Unavoidable tensions – Traditional

Art. 15(1) of the Hague Trusts Convention “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 ; f) the protection, in other respects, of third parties acting in good faith.”

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Art 9 TJL – Trust law as fortress against certain claims? The validity of a trust or of any disposition of property to a trust [sic] “shall be determined without consideration of whether or not … the trust or disposition avoids or defeats rights, claims, or interests conferred by any foreign law upon any person by reason of a personal relationship to the settlor or by way of heirship rights.”

•Art 9(2) is a rule of conflict •will only apply when Jersey is the forum, except if the forum accepts “”

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Unavoidable tensions - Summary • The Hague Trusts Convention does not provide a uniform solution to such conflicts of laws – it only determines the law governing the trust • Whether a court will disregard the effects of a (valid) trust to enforce rights mandated by some non-trust provision of law ultimately depends on the conflict rules of the forum • But the court where enforcement is sought (location of trust assets or personal over trustee) has the final say; see Art 9(4) TJL; 16(4) TGL

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Concerns – A forward looking assessment of offshore trusts • In many litigations before civil courts, one of the party wants to disregard the existence or effects of a trust • Silver bullet – civil lawyers “love” for sham trusts

Sponsored by Insights into Trust Law: The Channel Islands and beyond Friday 26 October 2012 AX and BX v C (Federal Tribunal, 12 April 2012) • Deceased’s daughters seek the return of funds paid by the trustee to the mistress of the deceased at his wishes “A trust is a sham when it is used artificially by the settlor, such as when he retains all powers over the assets in trust, which he intends to recover in the end. Such a trust is a nullity in accordance with the maxim ‘he who comes to equity must come with clean hands.’… A sham trust cannot be recognised in Switzerland since it is null under law governing the trust.” • No serious discussion of the conditions for a sham trust under applicable law (BVI); accepted on the basis of a legal opinion by an English barrister

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Three areas of concern • Reserved powers; when is a settlor-controlled trust a mere instrumentality? - Art 9A(2) TJL and 15(1) TGL, particularly (c), (d) and (h) • Trusts without a perpetuity period • Non-charitable purpose trusts

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Rybolovlev v Rybolovleva (Federal Tribunal, 26 April 2012) •Worldwide freezing order in divorce proceedings - extends to assets of two Cyprus trusts •Highest court considers that “piercing the veil” (trusts and underlying companies) is “not arbitrary” because trusts are mere “instrumentalities” of Rybolovlev who – - settled the trust two months after wife rejected a postnuptial agreement - is protector and main beneficiary, along with two daughters - retains all powers in respect of “designated companies” held by trustee •Piercing the veil based on Swiss doctrine of “manifest abuse of a right”; Hague Trust Convention not considered

Sponsored by Insights into Trust Law: The Channel Islands and beyond Friday 26 October 2012 Conclusion Developments of laws allowing •most extensive control by •perpetual settlements, and •non-charitable purpose trusts

Increase the risk that Swiss (and other civil law) civil courts will disregard entirely the existence of such trusts •as sham •by “piercing the veil” •or based on public policy

This is far worse than allowing the claw back of certain trust assets based on mandatory provisions of the laws governing the settlors bankruptcy, marital property, or estate

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