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This subject provides the opportunity to explore in depth the theoretical and practical issues concerning trusts law.
Trusts law extensively underlies, facilitates, and informs private wealth management and many commercial transactions. Trusts law also has a significant international aspect: it is pervasive not only in Australia and most other common law jurisdictions (including the ‘offshore world’), but also increasingly utilised in many civil law jurisdictions. This subject investigates private and commercial aspects of trusts law from an international perspective.
The subject is roughly split into two halves. The first half addresses trusts law in the private wealth management context, where we consider (among other things) the modern discretionary trust, how trustees’ exercise of powers may be controlled, and how trusts may be used and misused and the legal responses of ‘onshore’ and ‘offshore’ jurisdictions. The second half addresses trusts law in the commercial context, where we will consider how trusts law underlies and informs (among other things) assignments, unit trusts, bonds, and intermediated holding of securities. The subject will also consider the choice of law rules for express, resulting, and constructive trusts within private international law.
Among the topics to be explored are:
- Discretionary trusts and powers
- Letters of wishes
- Sham trusts
- Purpose trusts
- Asset protection trusts
- Equitable assignment
- Unit trusts
- Bond trustees
- Intermediated holding of securities
- Creditor trusts
- Choice of law in private international law
Intended learning outcomes
A student who has successfully completed this subject will understand, appreciate, and be able to explain the significance of:
- The use of trusts in several important commercial aspects and how they may differ from the private wealth management context;
- The use of trusts for private wealth management, in particular strategies commonly utilised by settlors to assert control during the life of a trust and the legal responses to those strategies both 'onshore' and 'offshore';
- The choice of law rules for trusts within private international law.
Expected skills developed through successful completion of the subject:
- An appreciation of the inherent character, flexibility, and limits of trusts law from a multijurisdictional perspective;
- A capacity to identify, understand, and critically evaluate the creative uses, and misuses of trusts law by the modern day settlor;
- An ability to identify, understand, and critically evaluate how trusts law facilitates certain commercial transactions and its limitations;
- Skills in the application of the comparative method.
Last updated: 11 February 2021