Asia-Pacific Trusts Law, Volume 1: Theory and Practice in Context (Hart Studies in Private Law)

At a time when Asia represents the fastest-growing economic region, there is no better moment to consider what trusts law can contribute to societal stability and economic prosperity. This book aims to do this by offering the first work that systematically explores trusts law across the region. Many Asian-Pacific jurisdictions have integrated and developed trusts law in their legal systems, either through colonial heritage or statutory activism. But the diversity of legal traditions and local contexts has resulted in trusts laws having a significantly varied impact. In the modern globalised world there is growing need to adopt an outward-looking approach in dealing with matters of common interest. This book answers this need by bringing together leading legal actors in the region to explore the theory and practice of trusts law, contextualised to specific jurisdictions in the Asia-Pacific. Exploring 17 jurisdictions in Asia, it brings both an academic and a practitioner perspective to trusts law in the region. Preface 6 Contents 8 1. Introduction 10 I. Background 10 II. The Book 12 III. Emerging Themes 23 IV. Conclusion 25 PART I 26 2. Mere and Other Discretionary Objects in Australia 28 I. Introduction 28 II. Discretionary Trusts in Australia 30 III. Objects with a Right to Due Administration 33 IV. The Opportunistic Object 43 V. The Beneficiary Principle 44 VI. Conclusion 47 3. A Lament for Trust Principles in New Zealand 48 I. Introduction 48 II. The New Zealand Trusts Landscape 50 III. Trust Principles under Threat 52 IV. Conclusion 64 4. Trusts in Hong Kong: Historical Application and Current Practice 66 I. Introduction 66 II. Trusts Practice in Hong Kong before the Economic Boom 67 III. Conclusion 83 5. Constructive Trusts and Limitation Periods in Malaysia 86 I. Introduction 86 II. Malaysian Limitation Periods for Trusts 87 III. Two Classes of Constructive Trust 89 IV. Class 2 90 V. Class 1 91 VI. Three Controversial Doctrines 95 VII. Delaying the Running of Time 101 VIII. Conclusion 103 6. Victoria Meets Confucius in Singapore: Implied Trusts of Residential Property 106 I. Introduction 106 II. Implied Trusts in Singapore: Blast or Break from the Past? 108 III. Perpetrating Gender Disparity? 111 IV. Reflecting Confucian Family Values 114 V. Values and Viability 125 VI. Conclusion 127 PART II 130 7. The Transplantation of Trusts Law in India 132 I. Introduction 132 II. The Reception of Trusts Law in India 133 III. Theory and Doctrine in the Indian Trusts Act 142 IV. The Indian Trusts Act in Modern Debates: A Word of Caution 149 V. Conclusion 150 8. Constructive Trusts under Muslim Family Law in Pakistan: Protecting Women's Rights to Matrimonial Property 152 I. Introduction 152 II. Women's Rights to Matrimonial Property 153 III. Trusts Law in Pakistan 158 IV. Constructive Trusts, Matrimonial Property and Muslim Family Law 160 V. Conclusion 163 9. The Law of Trusts in Bangladesh: Theory and Practice 164 I. Definition of the Trust in Bangladeshi Law 164 II. Jurisdiction 164 III. Analysis of the Trusts Act 1882 in Bangladesh 165 IV. How Far is English Trusts Law Applicable in Bangladesh? 168 V. Similarities between Bangladeshi and Indian Trusts Law 169 VI. Benefits of the Trusts Act 1882 170 VII. Drawbacks of the Trusts Act 1882 171 VIII. Practical Application of Trusts in Bangladesh 171 IX. Conclusion 182 10. Implied Trusts in Sri Lanka as a Creature of Legislation: The Way Forward 184 I. Introduction 184 II. Reception of Trusts 186 III. Implied Trusts in Sri Lanka 190 IV. Implied Trusts: Life Beyond the Trusts Ordinance 199 11. Philippine Trusts: Legal and Practical Considerations 204 I. Introduction 204 II. Philippine Law of Trusts: An Overview 205 III. Considerations in Using Philippine Trusts 208 IV. Conclusion 221 PART III 222 12. The Transformation of Japanese Trusts Law and Practice: Historical Contexts and Future Challenges 224 Introduction 224 I. Historical Reception and Commercial Uses 225 II. Family Trusts and Charitable Trusts 229 III. Doctrinal Exposition 232 IV. International Trust Practices 241 Conclusion 244 13. Debtor Rehabilitation and the Asset-Partitioning Effect of Security Trusts: The Korean Supreme Court's Position Revisited 246 I. Prologue 246 II. Civil Law Trusts and their Asset-Partitioning Effect 247 III. Rehabilitation Orders and the Asset-Partitioning Effect of the Trust 250 IV. Form or Substance, that is the Question 253 V. Epilogue 257 14. Taiwan's Trusts Law and Name-Borrowing Arrangements 260 I. Introduction 260 II. The Characterisation of Name-Borrowing Arrangements 262 III. The Civil Law Tradition and Trusts Law in Taiwan 264 IV. The Debate Surrounding Name-Borrowing Arrangements in Taiwan 267 V. Some Thoughts on Name-Borrowing Arrangements 271 VI. Conclusion 278 15. The Legal Nature of the Chinese Charitable Trust 280 I. Introduction 280 II. Two Perspectives for Observation 282 III. Observations on the Regulatory Framework 292 IV. Conclusion 297 PART IV 300 16. The Surviving Legacy of English Trusts Law and Trusts in Thailand 302 Introduction 302 I. Historical Background to Common Law Trusts in Thailand 303 II. Section 1686 of the CCC and the Purported End of Common Law Trusts in Thailand 309 III. Trust Disputes and the Supreme Court of Thailand 312 Conclusion 320 17. Arrangements Resembling Trusts under Indonesian Land Law 322 I. Introduction 322 II. Trusts under English Law 323 III. Trust-Like Arrangements Relating to Land in Indonesia 324 IV. Indonesian Property Law 326 V. Indonesian Land Law 327 VI. Returning to Trust-Like Arrangements under Indonesian Land Law 331 Postscript 337 18. Property Management Relationships and 'Trusts' in Vietnam 338 Introduction 338 I. A Historical Overview 338 II. Property Management Relationships in Civil Law 340 III. Property Management Relationships in Commercial Law 345 IV. Other Property Management Relationships 352 Conclusions and Recommendations 356 PART V 360 19. Offshore Trusts in the South Pacific: How Far can the Concept of the Trust be Stretched before it Breaks? 362 I. Introduction 362 II. Political and Legal Background 363 III. The Nature of Offshore Trusts in the South Pacific 368 IV. Does the Offshore Trust Strain the Principles of Trusts Law beyond Redemption? 381 V. Conclusion 387 20. Identifying an Asia-Pacific Private International Law of Trusts 390 I. Introduction 390 II. Applicable Law 391 III. Jurisdiction 404 IV. Conclusion 412 Index 414 "At a time when Asia represents the fastest growing economic region, there is no better moment to consider what trusts law can contribute to societal stability and economic prosperity. This book does this by offering the first work that systematically explores trusts law across the region. Many Asian-Pacific jurisdictions have integrated and developed trusts law in their legal systems; either through colonial heritage or statutory activism. But the diversity of legal traditions and local contexts has resulted in trusts laws having a significantly varied impact across the region. In the modern globalised world there is growing need to adopt an outward looking approach in dealing with matters of common interest. This book answers this need by bringing together leading legal scholars and practitioners in the region to explore the theory and practice of trusts law, contextualised to specific jurisdictions in the Asia-Pacific. Exploring 17 jurisdictions in Asia, it bring both an academic and practitioner perspective to trusts law in the region"-- Provided by publisher "Many Asian-Pacific jurisdictions have integrated and developed trusts law in their legal systems; either through colonial heritage or statutory activism. But the diversity of legal traditions and local contexts has resulted in trusts laws having a significantly varied impact across the region. In the modern globalised world there is growing need to adopt an outward looking approach in dealing with matters of common interest. This book aims to do this by offering the first work that systematically explores trusts law across the region. At a time when Asia represents the fastest growing economic region, there is no better moment to consider what trusts law can contribute to societal stability and economic prosperity."--