Trusts (Private International Law) Act 2015

Link to law: http://www.gibraltarlaws.gov.gi/articles/2015-18o.pdf
Published: 2015-09-17

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I ASSENT Trusts (Private International Law)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2015-18


TRUSTS (PRIVATE INTERNATIONAL LAW) ACT 2015

Principal Act

Act. No. 2015-18 Commencement (LN. 2015/161) 17.9.2015
Assent 1.7.2015




Amending
enactments
Relevant current
provisions
Commencement
date



Trusts (Private International Law)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2015-18

ARRANGMENT OF SECTIONS
Section
1. Short title and commencement.
2. Interpretation.
3. Jurisdiction of courts.
4. Choice of law rules applicable to Gibraltar trusts only.
5. Foreign law trusts.
6. Gibraltar to be treated as separate member State.
7. Relationship with existing legislation.
8. Scope and retrospective validity.
9. Power to make subordinate legislation.


Trusts (Private International Law)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2015-18
AN ACT TO PROVIDE FOR CERTAIN MATTERS OF PRIVATE
INTERNATIONAL LAW IN RELATION TO GIBRALTAR TRUSTS,
AND FOR CONNECTED PURPOSES.


Short title and commencement.

1.(1) This Act may be cited as the Trusts (Private International Law) Act
2015.

(2) This Act comes into operation on the day appointed by the Minister by
notice in the Gazette, and different days may be appointed for different
purposes.

Interpretation.

2. In this Act–

“disposition”, in relation to any property, includes every form of
disposition, conveyance, transfer, assignment, lease, licence,
mortgage, charge, pledge, encumbrance or other transaction of that
property or by which any interest in it is created or extinguished;

“heirship rights” means any right, claim or interest arising under the law
of a jurisdiction other than Gibraltar in, against or to the property of
any person arising, accruing or existing in consequence of, or in
anticipation of, that person’s death, other than a right, claim or
interest created by will or expressed in any other voluntary
disposition by that person or resulting from an express limitation in
the disposition of the property to that person;

“foreign” means a jurisdiction other than Gibraltar;

“foreign trust” means a trust the proper law of which is not the law of
Gibraltar;

“Gibraltar trust” means a trust whose proper law is the law of Gibraltar;

“the Hague Trusts Convention” means the Convention on the Law
Applicable to Trusts and on their Recognition, as enacted by the
Trusts (Recognition) Act 1989;

“judgment” means any judgment or arbitral award given by a court,
tribunal or arbitrator in any part of the world, whatever the
judgment or award may be called, including a decree, order,
decision or writ of execution, as well as the determination of costs
or expenses by an officer of the court or by a tribunal or arbitrator;

Trusts (Private International Law)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2015-18
“personal relationship” includes every form of relationship by blood,
adoption, marriage, civil partnership or cohabitation regardless of
whether the law of any jurisdiction recognises the validity,
legitimacy or existence of the relationship, and includes a former
personal relationship which has in law or in fact terminated. A
personal relationship also exists between two persons if such a
relationship exists or existed between each of them and a third
person.

Jurisdiction of courts.

3. The Gibraltar courts have jurisdiction where–

(a) the trust is a Gibraltar trust;

(b) a trustee of a foreign trust is resident in Gibraltar;

(c) any trust property of a foreign trust is situated in Gibraltar;

(d) administration of any trust property of a foreign trust is carried
on in Gibraltar; or

(e) the trust instrument contains a provision referring disputes to
the jurisdiction of the Courts of Gibraltar.

Choice of law rules applicable to Gibraltar trusts only.

4.(1) Subject to subsection (3), and without prejudice to Articles 8 and 9 of
the Hague Trusts Convention, any question in respect of a Gibraltar trust
concerning–

(a) the validity or interpretation of a trust;

(b) the validity or effect of any transfer or other disposition of
property to a trust;

(c) the capacity of a settlor, trustee, beneficiary, protector, enforcer
or object of a power;

(d) the administration of the trust, whether the administration be
conducted in Gibraltar or elsewhere, including questions as to
the powers, obligations, liabilities and rights of trustees
(including the rights and duties of trustees among themselves
and their appointment, resignation or removal);

(e) the existence and extent of powers, conferred or retained,
including powers of variation or revocation of the trust and
Trusts (Private International Law)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2015-18
powers of appointment and the validity of any exercise of such
powers;

(f) the relationships between the trustees and the beneficiaries
including the personal liability of the trustees to the
beneficiaries;

(g) the distribution of trust assets;

(h) the duty of trustees to account for their administration;

(i) restrictions upon the duration of the trust and upon the power
to accumulate the income of the trust;

(j) the nature and extent of any beneficial rights or interests in the
property; or

(k) the fiduciary powers, obligations or duties of the trustees,

shall be determined in accordance with the law of Gibraltar and no rule of
foreign law shall affect such question.

(2) Subject to subsection (3), and without prejudice to the generality of
subsection (1), no Gibraltar trust, and no disposition of property to or upon
such a trust, is void, voidable, liable to be set aside, invalid or subject to any
implied condition, nor is the capacity of any settlor, trustee, enforcer,
protector, beneficiary or object of a power to be questioned, nor is any
settlor, trustee, enforcer, protector, beneficiary, object of a power or third
party to be subjected to any obligation or liability or deprived of any right,
claim or interest, by reason that–

(a) any foreign law prohibits or does not recognise the concept of a
trust; or

(b) any rights, claims, or interests are conferred by any foreign law
upon any person including, in particular–

(i) by virtue of a personal relationship to the settlor or any
beneficiary, or object of a discretionary trust or power of
any nature; or

(ii) by way of heirship rights; or

any foreign judgment or order of a foreign court or decision of
any other foreign tribunal (whether in an arbitration or
otherwise) is made to recognise, protect, enforce or give effect
to any such rights, claims or interests.

Trusts (Private International Law)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2015-18
(3) Subsections (1) and (2)–

(a) do not validate any disposition of property which is neither
owned by the settlor nor the subject of a power of disposition
vested in the settlor in accordance with Gibraltar’s choice of
law rules;

(b) are subject to any express provision to the contrary in the terms
of the trust or disposition;

(c) do not confer capacity on a corporation unless it also has
capacity according to the law of its place of incorporation;

(d) are subject to any foreign law applicable by virtue of
Gibraltar’s choice of law rules to the formalities for the
disposition of property;

(e) are without prejudice to the requirement that a disposition of
immovable property situated in a jurisdiction other than
Gibraltar must be valid under the law of that jurisdiction; and

(f) do not validate any testamentary disposition of movable
property which is invalid according to Gibraltar’s choice of law
rules for succession. For the avoidance of doubt, nothing in this
provision is to be construed as permitting any rights referred to
in sub-section (2)(b) to be recognised or enforced or give rise
to any right, obligation or liability or raise any estoppel.

(4) Save as provided in subsection (3), and subject to section 7 below, the
choice of law rules applicable in Gibraltar to areas of law other than trusts
shall not apply to the determination of any question referred to in this
section.

(5) Subject to section 7 below, notwithstanding any legislation or other
rule of law for the time being in force in relation to the recognition or
enforcement of judgments, no judgment or order of a foreign court or
decision of any other foreign tribunal (whether in an arbitration or
otherwise) with respect to a Gibraltar trust shall be recognised or enforced
or give rise to any right, obligation or liability or raise any estoppel if and to
the extent that the foreign court or tribunal applied a foreign law or laws
whose relevant provisions are substantively different to those which would
be applicable by virtue of the choice of rules in this section. The burden of
demonstrating that there is no such substantive difference shall lie on the
party seeking recognition or enforcement of the foreign judgment or order.

Foreign law Trusts.

Trusts (Private International Law)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2015-18
5.(1) Subject to subsection (2), a foreign trust shall be regarded as being
governed by, and shall be interpreted in accordance with its proper law, as
determined (for matters within its ambit) by Articles 6 and 7 of the Hague
Trusts Convention.

(2) Without prejudice to Articles 15, 16 and 18 of the Hague Trusts
Convention, a foreign trust shall be unenforceable in Gibraltar–
(a) to the extent that it purports–
(i) to do anything the doing of which is contrary to the law
of Gibraltar,

(ii) to confer any right or power or impose any obligation the
exercise or carrying out of which is contrary to the law
of Gibraltar, or

(iii) to apply directly to immovable property situated in
Gibraltar;

(b) to the extent that the trust, or any disposition thereto or right,
claim or interest asserted in respect of such a trust is contrary
to the public policy of Gibraltar.

(3) Where subsection (2)(a)(iii) applies, any person in whom the title to
such immovable property is vested shall not be, and shall not be deemed to
be, a trustee of such immovable property.

Gibraltar to be treated as separate member State.

6. For all purposes connected to the operation and application of this Act,
Gibraltar shall be regarded as a separate member State in relation to the
member States of the EU or to any of them.

Relationship with existing legislation.

7. This Act applies subject to the following legislation, as amended from
time to time–

(a) the Hague Trusts Convention;

(b) any EU Regulation, EU Directive or international convention
by which Gibraltar is bound, or may become bound, which in
relation to particular matters, contains rules as to jurisdiction or
the recognition or enforcement of judgments;

(c) ection 419A of the Insolvency Act 2011.

Scope and retrospective validity.
Trusts (Private International Law)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2015-18

8. This Act applies to trusts whenever constituted or created, but nothing in
this Act shall retrospectively invalidate any Gibraltar trust or disposition of
property to a Gibraltar trust.

Power to make subordinate legislation.

9.(1) The Minister with responsibility for financial services may make such
rules, regulations or orders, or provide for such other statutory instruments
as he considers necessary or useful to fulfil the purposes and objects of this
Act.

(2) The power referred to in subsection (1) may be exercised for the
purpose of implementing an EU or international obligation.