Trust company

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A trust company under the Liechtenstein Law on Trust Companies (TrUG) is a

  • due to the fiduciary statute of one or more trustees (as fiduciary owners )
  • operated or operated under its own name or company ,
  • legally independent, organized,
  • economic or other purposes and
  • with its own assets bewidmetes companies ,
  • which has neither a public law character nor any other legal form under private law .

The trust company can be used for both commercial and non-commercial activities.

The conception of the Liechtenstein trust company was functionally partially based on the Business Trust (Massachusetts Trust).

The structure of the legal relationships in a trust company can largely be aligned with the establishment of private law or structured similar to a foundation .

Legal personality

Trust companies (also business trust or trust foundations) according to TrUG

  • without legal personality (actual business trust according to Art 932a § 1 Abs. 1 PGR ) and
  • with legal personality (improper business trust according to Art 932a § 1 Abs. 2 PGR) exist. A combination of several trust companies with the same or different participants as a legally independent trust department ( fund ) under the same trust statute is possible (Art 932a § 2 Paragraph 1 PGR).

Each trust company only comes into being when it is entered in the Liechtenstein trust register (Art 932a §§ 7 and 15 PGR). The name of the trust company can be derived from the company's purpose or it can be an imaginary name, but it must not cause confusion with another legal form of company such as trust company or the like (Art 1032a Paragraph 1 PGR). There is the principle of company exclusivity , according to which a new company name in the same place must be clearly different from an existing one so that confusion is ruled out.

If there is no clear regulation in the loyalty statutes as to whether a trust company was founded with or without legal personality, it is irrefutably assumed that it is a trust company without personality (Art 932a § 2 Paragraph 3 PGR). In practice in Liechtenstein, the registered trust company with legal personality (improper business trust) is primarily used.

founding

A trust company is founded by natural or legal persons through the signed and certified trust statutes (Art 932a § 9 Paragraph 1 PGR).

Purpose and subject

The trust company can be set up for any specific, reasonable and possible purpose that is not unlawful, immoral or dangerous to the state, in particular also for the investment of assets, distribution of earnings, consolidation of companies by transferring shares in trust or for Acquisitions for family-caring, non-profit, charitable, other personal, impersonal or similar purposes (Art 932a § 3 Paragraph 1 PGR).

Involved

Participants in a trust company are as a rule according to Art 932a § 39 Paragraph 1 PGR:

  • the trustors,
  • the trustees and
  • the beneficiaries including the contenders.

Each participant is to be granted access to the fiduciary order, insofar as he has a right, in particular an entitlement, if and to the extent that the relevant documents are not deposited with the public as trustee registry office and he can refer to the documents (statutes, regulations and the like) take copies of its costs or, if they have been reproduced, request copies to be handed over in return for reasonable reimbursement of the reproduction costs (Art 932a Section 39 (4) PGR).

If someone takes on the position of trustee (intermediate trustee) and beneficiary (co-beneficiary) at the same time, the trustee duties outweigh the obligations (Art 932a § 40 Abs. 2 PGR).

Enforceable deeds can also be drawn up about the obligations of the participants or third parties to the trust company, such as payments to the trust fund or the like, or about obligations of the trust company to participants, subject to the rights of the creditors (Art 932a § 40 Paragraph 4 PGR).

The trust company is particularly useful when the purpose of the company has not yet been determined and a commercial purpose may also be pursued later. In principle, the trust company can dispose of any purpose.

organization

The fiduciary order can regulate the legal relationship between the participants or between individual groups of participants, such as among the trustees or beneficiaries, by creating an organization and the rights and obligations of these organized participants, such as joint assertion of rights against the trust company or other participants or arrange the like (Art 932a § 41 Abs. 1 PGR).

Right to vote

As a rule, each voter and if securities are issued, each security during elections and decisions one vote , provided that the Trust Code does not provide otherwise (Article 932a § 42 para. 1 PGR).

The majority of those entitled to vote may only exercise their powers in such a way that, in their position as tacit trustee towards the minority, they do not violate the interests of the trust company and to the detriment of the minority or against good morals (Art 932a § 42 Paragraph 4 PGR).

Trustor

In case of doubt, the trustor (founder, trustor, trustor ) is the person who makes or guarantees the trust fund an asset (Art 932a § 49 Paragraph 1 PGR).

Insofar as the trustors who have donated the trust fund free of charge and who have provided the beneficiary to others free of charge on the basis of this donation do not also have the legal status of trustees, they can demand compliance with the trust regulations vis-à-vis other parties or third parties in accordance with the law to the same extent as the beneficiaries (Art 932a Section 49 (3) PGR).

The practice and jurisprudence with regard to the trustor in the trust company has increasingly approximated its position to that of a founder in an establishment under private law and also granted him "trustor rights" (similar to the founder's rights in an establishment under private law). The Supreme Court is now also assuming the possibility of assigning trustor rights to third parties.

As a result of this practice and case law, a typological distinction between the trust company and the establishment under private law is becoming more and more blurred.

Trustee

The appointment, dismissal, termination and so on of trustors is generally to be regulated in the trust order (Art 932a § 50 Paragraph 1 PGR). The right to appoint, recall or make a proposal (right of presentation) can be left for all or individual trustees to all or to individual participants or to third parties (Art 932a § 50 Paragraph 3 PGR).

If only certain beneficiaries are available, they can unanimously, if necessary with the involvement of a trustee appointed by the registry office for the unknown or uncertain beneficiaries, appoint or remove trustees at the expense of the company by a written resolution taken at a meeting or by circulation or the like (Art 932a § 50 para. 2 PGR).

A trustee can terminate his position at any time at his own expense, although he has to carry out his duty until a replacement has been made at the expense of the trust in accordance with the trust ordinance or the law (Art 932a § 56 Paragraph 1 and § 59 Paragraph 1 PGR ). For important reasons he can also resign immediately (Art 932a § 56 Abs. 2 PGR).

As a rule, all trustees are jointly responsible for managing the trust company , and they are obliged to act and make decisions together in good faith; In the case of non-profit or similar trusteeships, however, in the absence of any other arrangement, a resolution by the majority is also binding for the minority of the trustees (Trustee Council see Art. 932a § 62 Paragraph 1 PGR). Non-executive trustees can also be appointed (Art 932a § 63 PGR).

A transfer of management to third parties is possible within the framework of the law and the fiduciary order to individual trustees or to third parties, provided they lack specialist knowledge or it is customary to call in auxiliary persons and issue regulations on the management of the management with the stipulation that individual trustees or third parties can be entrusted with the execution of individual branches of the company or individual fiduciary transactions with or without compensation and under the responsibility of all trustees for the selection and monitoring made by them (Art 932a § 64 Paragraph 1 PGR).

Trustees and representatives are responsible for the diligence of a prudent businessman, as they are used in their own business affairs, and are liable for any culpable breach of their duties (Art 932 § 65 Paragraph 1 PGR). There is a right to trace the property if a trustee illegally sells trust property contrary to the fiduciary order or the law (Art 932a § 30 Paragraph 1 PGR).

In the case of trusteeships, in accordance with Article 239 PGR, a representative must be appointed who is domiciled in Liechtenstein, unless the trustee already lives in Liechtenstein or, in the case of legal entities, has his seat in Liechtenstein.

Obligation to provide information

Each beneficiary and intermediary trustee is to be provided with information on all facts and circumstances, in particular about the status and investment of the trust assets, on request, to submit reports and accounts at appropriate intervals and to explain why they are actually including assets Have not received or have not achieved income which they would have received or should or could have received after the ordinary course of things or according to other circumstances (Art 932a § 68 Paragraph 1 and 69 Paragraph 1 PGR).

This legally stipulated obligation to provide information is optional. The fidelity order can provide for a different regulation in this regard. The trustor can therefore expand or restrict the rights of those entitled to information in the trust statute. A further restriction can be found in Art 932a § 68 Para. 1 PGR to the extent that the beneficiaries, including the beneficiaries, are only given information " insofar as their rights are concerned ".

Compensation claims and loyalty pay

Trustees can for their claims (reimbursement of expenses and uses for the trust company and the damage they have suffered from the company, furthermore release from the obligations entered into in the interest of the company or otherwise at their expense, as well as for loyalty wages and reimbursement of customary interest) as creditors Demand satisfaction only insofar as they were not caused by your fault and appear justified by the circumstances (Art 932a § 71 Paragraph 1 PGR). These claims are generally directed against the trust company itself (Art 932a § 72 Paragraph 1 PGR).

Loyalty beneficiaries

Loyalty beneficiaries (beneficiaries, beneficiaries, beneficiaries, etc.) are those who, according to the loyalty ordinance , are allowed to draw any present or future benefit from the trust company (Art. 932a § 78 Paragraph 1 PGR).

The fidelity benefit can arise with or without consideration, such as through purchase monies, current contributions or the like on the part of the trustors for the beneficiaries or on the part of the latter as trustor to the trust company and with or without issuing securities via the beneficiary, provided that the trust regulation is not a non-profit or with provides a trusteeship equipped for a similar purpose with beneficiaries not specified in advance or with impersonal privileges or the like (Art 932a § 80 Paragraph 1 PGR).

The rights and obligations of the beneficiaries are generally determined by law or fiduciary regulation, if necessary according to the content of the securities issued via the beneficiary and, in addition, according to the regulations on trusteeships in general (Art 932a § 94 Para. 1 PGR).

Particularly in the case of family trust companies, a list of the specific beneficiary owners or living beneficiaries must be created and continuously updated (Art 932a § 102 Para. 1 PGR),

  • if the trust is not linked to a bearer paper or
  • the determination of the beneficiaries is not at the discretion of the trustees, other bodies or third parties, or
  • Unless otherwise there is a trust company with a charitable or similar purpose with unspecified beneficiaries, or
  • there are no impersonal privileges.

The beneficiary's rights are fully or partially transferable and inheritable , resilient and attachable , unless this is excluded in the loyalty statutes or a highly personal right exists (Art 932a § 122 Paragraph 1 PGR).

Loyalty Charter

The trust statutes can be drawn up by the trustor, the trustee or a third party and must be drawn up as a special document (Art 932a § 9 Paragraph 1 PGR).

The loyalty statutes must at least state (Art 932a § 9 Paragraph 2 PGR):

  1. Company (name), seat, duration, purpose of the trust company or the object of the company
  2. Designation as "trust company", "trust foundation" or "business trust", or a similar expression;
  3. Details of the trust fund, if necessary its procurement;
  4. The number and manner in which the trustees are appointed, as well as an indication of how the future appointment of trustees is to be carried out if they are no longer applicable for any reason
  5. Form of notification to third parties.

The loyalty charter can also contain further information. These special regulations can also be reserved for one of the regulations (by-laws) provided for in the loyalty statute (Art 932a § 10 Paragraph 1 PGR).

liability

Trust company

In principle, only " the trust fund specified in the loyalty statutes and any other other assets of the trust company " are liable for the trust company's liabilities to third parties . As a rule, there is no personal liability of those involved or a statutory obligation to make additional contributions (Art 932a, Section 36, Paragraph 1 of the PGR).

Extension of liability

In the loyalty statutes it can be stipulated " that the other trust assets not contained in the company as trust funds or otherwise contained in a trust, to which the company itself belongs, are liable for its liabilities " (Art 932a § 37 Paragraph 1 PGR).

Limitation of Liability

" For a trust company without commercial operation and without exercising any other trade, the trust register may include in the trust register for the purpose of entry that private liabilities that are valid for the company after establishment, apart from claims from tortious acts, only with the consent of a special body or the next contender or third party can be entered into, or that a private creditor may seek his satisfaction only from the assets not belonging to the trust fund or only from the earnings or neither from the trust nor from the earnings as long as the trust company is not terminated "( Art 932a § 38 Paragraph 1 PGR). Further restrictions are possible (Art 932a § 38 Paragraph 2 ff PGR).

Trustee

Unless otherwise stipulated in the loyalty statutes and subject to unauthorized actions or special agreements, several trustors are not jointly and severally liable as such for their obligations entered into as a result of the establishment of the trust company (Art 932a § 24 Paragraph 1 and 142 ff PGR).

Liability to the trust company

If a trustee or representative of the trust company has illegally sold trust property contrary to the trust regulations or the law, every other trustee or beneficiary or beneficiary has the right to trace the trust property, and he can do the same after notifying the managing trustee on behalf of and for the benefit of the trust company demand the surrender of the property in accordance with the rules of ownership, provided that the trust property has not been acquired for an appropriate fee by a third party who had no knowledge of the trust status at the time of acquisition (Art 932a § 30 Paragraph 1 PGR).

Third Party Liability

If trustees, in exercising their fiduciary power, have harmed a bona fide third party through deliberate deception under the stipulation that there is a liability or obligation to make additional contributions in excess of the trust property in contravention of the fiduciary order, or greater than the actual trust assets or the like, the acting trustees are for the third party Unlimited and jointly responsible for any damage incurred in connection therewith, subject to their right of recourse against the trust company or other persons, insofar as they are enriched or have otherwise benefited (Art 932a § 36 Paragraph 2 PGR).

For unauthorized acts and omissions that trustees have committed in the exercise of their fiduciary power or an organ or any other representative appointed under the loyalty statutes in the exercise of their representative activity, these are unlimited and solidarity in addition to the trust company, otherwise with corresponding application of the relevant regulations for association members responsible (Art 932a § 36 Abs. 4 PGR).

Beneficiary Accountability

If co-beneficiaries have induced a trustee to breach fiduciary or otherwise in their simultaneous position as trustee alone committed such or consented to such, they are solely liable up to the amount of their beneficiary rights, in addition, together with other wrongdoers, the other claimants for the damage incurred, the trust company however, insofar as it is entitled to claim, it has a statutory right of lien on the trust usufruct, if this has not been declared inalienable (Art 932a § 145 Paragraph 1 PGR).

Third Party Accountability as a Constructive Trustee

Does a third party (including representatives, employees , other auxiliary persons and the like of a trust company) act against the trust company under deliberate deception that he is authorized to do so as a trustee, or does he otherwise interfere in the management without authorization, or he receives in the specified capacity as a trustee or if he is aware of a breach of trust committed by someone else in an inadmissible manner, or if he takes advantage of the trust assets unlawfully or in a manner contrary to good faith, or if the third party in other cases knowingly helps the trustees commit a breach of trust, he shall be liable same as the trustee and is obliged to provide information (Art 932a § 146 PGR).

Loyalty Fund

The value of the trust fund must be at least CHF 30,000 (contribution in kind possible). If the entry in the trust register is in euros or US dollars , the value of the trust fund must be at least 30,000 euros or 30,000 US dollars (Art 932a § 22 Paragraph 1 PGR).

" The trust fund can, if the loyalty statutes do not exclude it, be increased by successive, fully or partially made contributions by the old or newly joining trustors in return for a written declaration of accession to the trust company, or reduced by gradual distribution " (Art 932 § 22 Paragraph 2 PGR) .

For services to the trust fund, securities can also be issued via the beneficiary (Art 932 § 23 Paragraph 1 PGR).

Trust property

Pursuant to Art 932a § 25 PGR, the provisions on trust assets among trusteeships generally apply in addition to the trust assets as special assets , unless there are deviations from the provisions on the trust enterprise. The rules applicable to foundations also apply to the donation of assets before and after the establishment of the trust company.

The trust assets are to be distinguished from trust funds. The trust assets include all the assets of the trust company and generally exceed the trust fund in terms of value.

Asset management and investment

Within the framework of the law and the fiduciary regulation, the trustees have to ensure proper administration and maintenance of the trust assets in their legal and economic existence and, in particular, that the trust assets, insofar as the nature of the business, the circumstances or the achievement of the purpose permit, are in the The company comes into possession , is not mixed with its own assets, insecurely invested assets are confiscated and invested accordingly (Art 932a § 28 Paragraph 1 PGR).

If nothing else emerges from the purpose or the fiduciary arrangement of the trust company , the trustees can decide with a simple majority that they invest the trust assets, in particular also available income, until their distribution in accordance with the regulations on trusteeships in general, safely and fruitfully (Art 932a Section 31 (1) PGR). The trustees can convert an investment that is not permitted by law or fiduciary regulation into a permissible one at any time if not all beneficiaries or another competent authority approves it (Art 932a § 31 Paragraph 2 PGR).

Pursuant to Art 932a Section 29 PGR, the trustees are authorized to sell or encumber trust assets including the income within the scope of the purpose or object of the company and by law:

  • for items that can be consumed quickly or perish, the proceeds of which take the place of the item;
  • to pay off the debts of the parties involved, insofar as trust assets can be used for this;
  • important reasons how to
    • Dispositions that serve public purposes, or
    • to preserve or improve trust assets.

Reserve funds and other reserves

To protect against losses, devaluation or sustainable profitability or the like, an appropriate reserve fund or reserves can be created (Art 932a § 33 Paragraph 1 PGR). Under certain circumstances, the trustees are also obliged to set up a reserve fund or other reserves (Art 932a § 33 Paragraph 2 ff PGR).

Distribution of wealth and income

If, according to the fiduciary arrangement, the net income or part of the same or assets are to be distributed to the beneficiaries as income annually or in shorter or longer periods of time, the managing trustees have, in the absence of any other arrangement, at their reasonable discretion on the basis of the rules of an orderly income economy and, in addition, those about the Usufruct to determine what is to be set as uses, encumbrances, expenses or the like on the income statement (profit and loss account) and what is to be set for the account of the trust assets including the increase and, if applicable, after which period of time the net income is distributed (Art 932a § 26 Para . 2 PGR).

A gradual distribution (donation) of trust assets among beneficiaries may only take place to the extent that the trust company's liabilities to third parties and other beneficiaries are still secured by the existing assets (Art 932 § 27 Paragraph 1 PGR).

Auditor

If the trust company carries out a commercial business or if such a business can be carried out in accordance with the loyalty statutes, an auditor must be appointed (Art. 932a § 43 Paragraph 1 PGR and Art 192 Paragraph 8, 195 PGR).

In any case, an annual list of assets must be compiled (Art 932a § 34 Paragraph 1 PGR).

Official fidelity surveillance agency

In the case of trust companies without a commercial operation, for important reasons, at the request of those involved or those persons or bodies who have the right to appoint or dismiss or propose trustees or a right to propose or lend trust, or the universal successor or the executor of the trustor, who have provided the entire trust fund for the benefit of others free of charge, a trust monitoring body is set up by the commercial register (Art 932a § 154 Paragraph 1 PGR).

In principle, the supervisory body has the rights and duties that the Office of Justice orders when it is appointed or afterwards, but at least those that the supervisory board has at the stock corporation and its members also have the position of additional trustees (Art 932a Section 156 (1) PGR ).

termination

The termination (dissolution and extinction) of a trust company occurs regularly due to (Art 932a § 17 PGR):

development

The development of the number of trust companies includes all trust companies entered in the commercial register in Liechtenstein, but not registered trusts. The data was taken from the publication of the commercial register in Liechtenstein , as published annually in the annual report. Information as of December 31 of each year. Before 2009, the trust companies were not shown separately in the annual statistics. In the period from December 31, 2009 to January 1, 2017, around 1,400 trust companies were deleted from the register (- 59%). If this development continues, as in the years 2009 to 2016 with around 200 deletions per year, there will be no more trust companies in Liechtenstein by 2022 at the latest. While it took about 70 years to build up to a high of 2,386 trust companies, the reduction to a level in the 1930s would be achieved in just 14 years if the tendency towards deletions persist.

Development of the number of trust companies in Liechtenstein
2386
2188
2018
1797
1585
1388
1206
977
848
770
2009 2010 2011 2012 2013 2014 2015 2016 2017 2018

Note : The figures in the current statement of accounts are inconsistent from December 31st of each year to January 1st of the following year and are obviously corrected in each subsequent government statement of accounts . These figures for the current year are therefore only provisional. On the basis of a small request from MP Harry Quaderer in October 2012, government councilor Aurelia Frick informed that "due to the ongoing re-entry of old tabs (...) legal entities are continuously entered or removed from the commercial register database ". " These changes in the stock number are not listed as a» new establishment «or» deletion «, as the process did not take place in the current year. As a result, the stock number on December 31st does not match the number on January 1st of the following year . "

For detailed overall statistics for all types of companies in Liechtenstein: see Commercial Register (Liechtenstein) .

Web links

Sources and References

  1. ↑ Corporate structure, in particular through the issue of shares (certificates).
  2. ↑ There are no members and no shares are issued.
  3. ↑ Art. 932a with §§ 1 to 170 was inserted into the PGR by LGBl. 6/1928.
  4. ↑ In addition must " registered trust enterprise are," or similar names, such as " registered business trust ", " registered Salman shaft ", " registered Trust Foundation ", " registered trust Institute " (Article 1032 para. 2 PGR, 1044b, para. 1 PGR) . In practice, the term " Trust reg. " Is often used.
  5. ↑ One of the reasons for this is the tax advantages for registered trusts.
  6. ↑ See also Art 932a § 114 ff PGR.
  7. ↑ ELG 1973–1978, 176 ff; LES 1983, 45 ff.
  8. ↑ judgment OGH 5 C 165/81 and 5 C 230/81.
  9. ↑ At least one trustee must meet the requirements of Art 180a PGR.
  10. ↑ The Liechtenstein Supreme Court drew a line in this regard in 1 CG.2002.32-93, p. 37, in a similar case of a foundation under Liechtenstein law. The restriction of the obligation to provide information is only possible within the framework of Art 2 PGR ( good faith ) and Section 879 ABGB ( good morals ).
  11. ↑ Who is or is not a beneficiary is primarily based on Art 932a § 78 ff PGR. In this regard, Liechtenstein takes a restrictive approach (see for example: OGH in 4 Cg 2001.429-29, p. 67).
  12. ↑ Note: Insofar as a beneficiary makes contributions to the trust fund or has undertaken to pay, and nothing else is stipulated by law, in this respect, as trustor, he is also subject to the provisions relating to these (Art 932 § 94 Paragraph 4 PGR).
  13. ↑ See also Art 932a § 98 PGR.
  14. ↑ The directory should in particular contain: surname, first name, place of residence, if possible also the date of birth and place of birth, if no securities have been issued, or the company (name) and domicile of the beneficiary owners, if applicable of the living beneficiaries, including the same information about their possible joint Representative, date of acquisition or loss of beneficiary ownership or entitlement, type of beneficiary and the like (Art 932a § 103 Abs. 1 PGR).
  15. ↑ This is common practice. "Implementing provisions which have been drawn up without the consent of the trustor may not contradict the deed of trust or the regulations drawn up by the latter, otherwise the contradicting provisions are invalid, subject to the claims of bona fide third parties, unless the Office of Justice allows exceptions for important reasons" ( Art 932a § 10 Abs. 2 PGR).
  16. ↑ See commercial register
  17. ↑ In Liechtenstein, the legal opinion is partly held that the regional court in Vaduz is responsible for the establishment of the fiduciary monitoring agency, despite the contrary wording in § 154 TrUG, and not the commercial register, as this is a measure of judicial supervision of a trusteeship .
  18. ↑ Source: Annual reports 2005 to 2018 online.
  19. ↑ The information for 2009 is uncertain and probably an extrapolation.
  20. ↑ MINUTES OF THE PUBLIC LAND DAY MEETING OF 24./25. OCTOBER 2012, PART 1, approved in the state parliament session on December 19, 2012, accessed on January 25, 2013 at: [1]
  21. ↑ MINUTES OF THE PUBLIC LAND DAY MEETING OF 24./25. OCTOBER 2012, PART 2, approved in the state parliament session on December 19, 2012, accessed on January 25, 2013 under: [2]