CONVENTION
ON THE LAW APPLICABLE TO TRUSTS AND ON THEIR RECOGNITION
(Concluded
July 1st, 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
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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
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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.
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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 -
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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.
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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 -
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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.
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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.
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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
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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.
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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.
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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
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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
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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;
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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.