Asset Protection and Insolvency

2020 ◽  
Author(s):  
Jonathan Hilliard ◽  
Jack Watson
Keyword(s):  
Common Law ◽  
Asset Protection ◽  
Asset Recovery ◽  
Attractive Option

The use of trusts to protect assets from the effects of insolvency has long been an attractive option for those who wish to ring-fence their assets against the claims of creditors. In modern asset recovery litigation, these problems are spread across a number of jurisdictions. Therefore, as well as understanding how such issues are dealt with domestically, it has become increasingly important to understand the detail of offshore legislation and common law as well.

Family Foundations in Switzerland

2020 ◽  
Vol 26 (6) ◽  
pp. 580-589
Author(s):  
Natalie Peter
Keyword(s):  
Common Law ◽  
Estate Planning ◽  
Asset Protection ◽  
Legal Limits ◽  
Swiss Law ◽  
The Future ◽  
Family Foundations

Abstract At a governmental level, the introduction of a Swiss law on trusts is currently being reviewed. One of the arguments is that Switzerland does not provide for a suitable instrument to be used for estate planning or asset protection purposes. Many scholars and practitioners take the view, though, that a common law trust is not a suitable instrument and that therefore it would be more advisable to review the existing instruments, such as the Swiss family foundation or the fiducie (Treuhand), and to amend them accordingly. This article shall shed some light on the Swiss family foundation, on its use and limits and how it could be used de lege ferenda in the future if its legal limits were finally to be released.

Beware the Asset Protection Trust

2016 ◽  
Vol 5 (2) ◽  
Author(s):  
Carla Spivack
Keyword(s):  
Social Policy ◽  
Common Law ◽  
Civil Law ◽  
Legal Philosophy ◽  
Tax Law ◽  
Asset Protection ◽  
Legal Texts ◽  
The Common ◽  
Trust Law ◽  
Legislative Approval

AbstractCivil law regimes in Europe have been cautiously open to the common law trust for commercial purposes, and to some forms of the private trust as well. This openness indicates that the time may be right to issue a warning to civil lawyers about the recent proliferation of highly problematic forms of the trust in the U. S., and to offer an explanation of the dysfunction which allowed these trusts to win legislative approval. Civil law may be less amenable to these forms of trust for reasons of social policy and legal philosophy as expressed in foundational legal texts. Recent changes to EU trust law and to French and Dutch tax law indicate that this may be the case. This article discusses these new trust forms and discusses some elements of civil law which, at least from a common lawyer’s perspective, offer some resistance to them.

“Farewell to Unjustified Enrichment?” – A Common Law Response

2016 ◽  
Vol 20 (3) ◽  
pp. 326-337
Author(s):  
Steve Hedley
Keyword(s):  
Common Law ◽  
German Law ◽  
Unjust Enrichment ◽  
Level Of Abstraction ◽  
The Law ◽  
Unjustified Enrichment ◽  
High Level ◽  
Logical Process

In this article, Professor Steve Hedley offers a Common Law response to he recently published arguments of Professor Nils Jansen on the German law of unjustified enrichment (as to which, see Jansen, “Farewell to Unjustified Enrichment” (2016) 20 EdinLR 123). The author takes the view that Jansen's paper provided a welcome opportunity to reconsider not merely what unjust enrichment can logically be, but what it is for. He argues that unjust enrichment talk contributes little of value, and that the supposedly logical process of stating it at a high level of abstraction, and then seeking to deduce the law from that abstraction, merely distracts lawyers from the equities of the cases they consider.

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