<ГААГСКАЯ КОНВЕНЦИЯ О ПРАВЕ ПРИМЕНИТЕЛЬНОМ К ДОВЕРИТЕЛЬНОЙ СОБСТВЕННОСТИ И ЕЕ ПОСЛЕДУЮЩЕМ ПРИЗНАНИИ> [англ.](Заключена в г. Гааге 01.07.1985)
CONVENTION
ON THE LAW APPLICABLE TO TRUSTS AND ON THEIR
RECOGNITION
(Hague, 1.VII.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
Article 1
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
The Convention
applies only to trusts created voluntarily and evidenced in writing.
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.
Article 7
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
-
a) the appointment, resignation and removal of trustees, the capacity
to act as a trustee, and the devolution of the office of trustee;
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.
Article 9
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 recognized 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 -
a) that personal creditors of the trustee shall have no recourse against the
trust assets;
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 recognize 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.
Chapter IV. 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.
If recognition of a
trust is prevented by application of the preceding paragraph, the court shall
try to give effect to the objects of the trust by other means.
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
Nothing in the Convention shall prejudice the
powers of States in fiscal matters.
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.
Article 23
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.
No other reservation shall be permitted.
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
If a State has
two or more territorial units in which different systems of law are applicable,
it may at the time of signature, ratification, acceptance, approval or accession
declare that this Convention shall extend to all of its territorial units or
only to one or more of them and may modify this declaration by submitting
another declaration at any time.
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
Any Contracting State may denounce this Convention by a formal
notification in writing addressed to the Ministry of Foreign Affairs of the
Kingdom of the Netherlands, depositary of the Convention.
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;
g) the denunciations referred to in Article 31.
In witness whereof the undersigned, being duly authorized 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.
(Follow the
signatures)
