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It is well-known that the trust is a significant device that provides the foundation for a range of domestic and commercial arrangements in common law jurisdictions. In contrast, its existence, influence, and development in Asia are under-discussed. This subject aims to explore, from theoretical and practical perspectives, the influence of trusts law in Asia-Pacific, and to provide an appreciation of the enormous potential of trusts law across the region.
This subject will take as its starting point the trusts laws in common law jurisdictions in the region, such as Australia, New Zealand, Hong Kong, and Singapore, given that the trust is a distinctively common law device. From there it will consider the differences between common law and civil law traditions, how this provides challenges for the transplantation of the trust, and strategies that have been adopted to overcome them. The subject then explores the different uses of the trust in Asia-Pacific, as well as how the trust is used in the family and commercial contexts, for asset protection purposes, and alongside indigenous customary or religious property-holding forms. It also considers the extent to which constructive and resulting trusts are relevant in non-common law jurisdictions in Asia-Pacific. Finally, the private international law perspective will be discussed, focusing on issues of jurisdiction and choice of law.
Principal topics will include:
- Civil law, mixed traditions and issues surrounding transplantation
- Trusts Diffusion in Asia-Pacific
- Conceptions of the trust
- Uses of the trust in Asia-Pacific
- Trusts and the family context
- Trusts and commercial arrangements
- Pacific offshore trusts
- Trusts and customary/religious property-holding forms
- Constructive and resulting trusts
- Private international law: jurisdiction and choice of law
Intended learning outcomes
A student who has successfully completed this subject will understand, appreciate, and be able to explain the significance of:
- The differences between common law and civil law traditions and how they impact on the reception of the trust;
- The historical reception of the trust in Asia-Pacific;
- How trusts law has been used or adapted to address issues in the family, commercial, and customary/religious contexts;
- The use of trusts for asset protection purposes in Asia-Pacific;
- The applicability of constructive and resulting trusts in the region; and
- Jurisdiction and choice of law issues surrounding trusts in Asia-Pacific.
- An appreciation of the inherent character, flexibility, and limits of trusts law from an Asian-Pacific perspective;
- An ability to identify, understand, and critically evaluate how trusts law facilitates certain domestic and commercial transactions and its limitations;
- An understanding of how the trust interacts with customary or religious property-holding forms;
- An ability critically to analyse the desirability of incorporating, developing, and transplanting aspects of the trust in Asia-Pacific;
- An appreciation of cross-border issues that arise in Asia-Pacific in relation to trusts; and
- Skills in the application of the comparative method.
Last updated: 29 July 2022