Convention on the Law Applicable to Trusts and their Recognition

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The Convention on the Law Applicable to Trusts and their Recognition (in short: Hague Trust Convention , HTÜ ) was concluded on July 1, 1985 in The Hague .

Aim and purpose

According to the preamble, the aim and purpose of the Convention is, for the trust , as it was developed by courts of equitable law in the countries of common law and, with some changes, adopted in other countries and is a unique legal institution, to have common provisions on what is applicable to trusts Establish law and regulate the most important issues relating to the recognition of trusts (Article 1 of the Convention).

scope of application

The Convention is only applicable to countries that have acceded to the Convention or where the law provides for trusts or certain trusts (Articles 5 and 13 HTC). If a state comprises several territorial units (e.g. the United Kingdom ), each of which has its own legal norms for trusts, a reference to the law of that state shall be understood as a reference to the right when determining the law applicable under this Convention that applies in the territorial unit concerned (Articles 23 and 24 HTÜ).

As a matter of principle, the convention is only applicable to voluntarily established and documented trusts (Article 3 HTÜ), whereby the convention does not apply to preliminary questions regarding the validity of wills or other legal transactions through which assets are transferred to the trustee (Article 4 HTÜ) .

However, the provisions of the Convention can always be disregarded if their application would be manifestly incompatible with the public order ( ordre public ) of a state (Article 18 HTÜ).

Applicable law

According to Article 6 of the Convention, the trust is primarily subject to the law chosen by the settlor ( German founder ; English also trustor , grantor , donor or creator ), whereby the choice of law must be express or result from the provisions of the deed of establishment or the document that the Trust confirmed ( trust deed , trust deed ).

If the law chosen under Article 6 (1) of the Convention does not provide for trusts or the type of trusts concerned, the choice of law is invalid and the law with which the trust has the closest connections shall apply under Article 7. A separable part of a trust, in particular its administration, can also be subject to another law (Article 9 HTÜ).

construction

  • preamble
  • Chapter I: Scope
    • Articles 1 to 5
  • Chapter II: Applicable Law
    • Articles 6 to 10
  • Chapter III: Recognition
    • Articles 11 to 14
  • Chapter IV: General Provisions
    • Articles 15 to 25
  • Chapter V: Final Provisions
    • Articles 26 to 32

Notification / deposit

The Ministry of Foreign Affairs of the Kingdom of the Netherlands is responsible for the notification, for declarations or withdrawal of declarations, the deposit of the ratification, acceptance or approval documents etc.

Accession and termination

According to Article 28 HTÜ, any state can accede to the Convention, whereby the accession is only effective in the relations between the acceding state and the contracting states that have not objected to the accession within twelve months of receipt of the notification provided for in Article 32. A State which consists of two or more territorial units in which different legal systems apply may, at the time of signature, ratification, acceptance, approval or accession, declare that the Convention applies to all of its territorial units or only to one or more of them extends (Article 29 HTÜ).

Any Contracting State may denounce the Convention in accordance with Article 31 by formal notification to be sent to the Ministry of Foreign Affairs of the Kingdom of the Netherlands, the depositary of the Convention. The termination will take effect on the first day of the month following a period of six months after receipt of the notification by the depositary or at a later date specified in the notification.

Language versions

The Convention has been drawn up in English and French, both texts being equally authentic. An original was deposited in the archives of the Government of the Kingdom of the Netherlands and a certified copy was sent through diplomatic channels to each state which was a member of the Conference at the time of the Fifteenth Session of the Hague Conference on Private International Law.

Member States

As of April 2018, the 16 member states of the HTÜ are: Australia , China , France , Italy , Canada , Liechtenstein , Luxembourg , Malta , Monaco , Netherlands, Panama , San Marino , Switzerland , United Kingdom, United States of America , Cyprus .

See also

Web links

literature

  • Peter Max Gutzwiller: Swiss International Trust Law: Commentary on the Hague Convention on the Law Applicable to Trusts on Recognition (HTÜ) of July 1, 1985 and the Swiss Implementation Legislation of December 20, 2006. 1st edition. Helbing Lichtenhahn, Basel 2007.
  • Hein Kötz : Trust and Treuhand. A comparative legal representation of the Anglo-American trust and functionally related institutes of German law. 1st edition. Vandenhoeck & Ruprecht , Göttingen 1963.
  • Schiemann, Christoph: The US American trust presented as a will substitute business and instrument of estate planning with special consideration of the law of the state of Florida . 1st edition. Grin Verlag, Munich 2003, ISBN 978-3-640-18378-4 .
  • Raimund Behnes: The Trust in Chinese Law. A presentation of the Chinese trust law from 2001 against the background of English trust law and the law of fiduciary trust in Germany. 1st edition. de Gruyter , Berlin, New York 2009, ISBN 978-3-89949-636-9 .
  • Mike Wienbracke: Trusts in Germany. Civil Law - Tax Law . 1st edition. Springer Gabler , Wiesbaden 2012, ISBN 978-3-8349-3401-7 .

Individual evidence

  1. ↑ According to Article 17 HTÜ, the expression law means the legal norms applicable in a state, excluding its conflict of laws.
  2. ↑ According to Article 20, however, each contracting state can at any time declare that the Convention also applies to trusts established by court decision. Due to the favorability clause according to Article 14 HTÜ and according to national law, it can also lead to the binding recognition of e.g. B. Oral Trust come.
  3. ↑ In the USA .