Joe Zhixiong Zhou v SAIF Partners II L.P. is a recent judgment of the Hong Kong Court of Final Appeal which concerns a dispute between a private equity fund and its former partner. This judgment, written by Lord Hoffmann NPJ and substantially shorter than those handed down by the lower courts, has several important implications. In this article, we will first unpack and explain the judgment and supplement the discussions with the relevant legal principles and concepts. We will then discuss the judgment’s implications to cases involving a complex web of parties and/or fiduciaries.
周志雄诉SAIF Partners II L.P.是香港终审法院最近的一项判决，涉及一家私募股权基金与其前合伙人之间的纠纷。这项判决由霍夫曼勋爵（Lord Hoffmann NPJ）撰写，比下级法院的判决要短得多，具有几个重要意义。在本文中，我们将首先对判决进行解读和解释，并用相关的法律原则和概念补充讨论。然后，我们将讨论该判决对涉及复杂的当事人和/或受托人网络的案件的影响。
{"title":"Joe Zhixiong Zhou v SAIF Partners II L.P.: The importance of mapping out the correct corporate structure","authors":"Benny Chung, Thomas Yeon, Bennett Au-Yeung","doi":"10.1093/tandt/ttab049","DOIUrl":"https://doi.org/10.1093/tandt/ttab049","url":null,"abstract":"\u0000 Joe Zhixiong Zhou v SAIF Partners II L.P. is a recent judgment of the Hong Kong Court of Final Appeal which concerns a dispute between a private equity fund and its former partner. This judgment, written by Lord Hoffmann NPJ and substantially shorter than those handed down by the lower courts, has several important implications. In this article, we will first unpack and explain the judgment and supplement the discussions with the relevant legal principles and concepts. We will then discuss the judgment’s implications to cases involving a complex web of parties and/or fiduciaries.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44591342","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article looks at a recent judgment of the Royal Court of Jersey in which two of the five executors sought relief from the Court aimed at breaking the deadlock which had plagued the administration of the estate for much of its 19 years. The Court agreed to a request to delegate the final stages of the administration (which mainly related to selling some apartments in Malaysia) to the court appointed administrator. Whilst final sign off for any material steps rests with the executors themselves, a mechanism has been built into the orders which allows the Viscount of Jersey to sign documents on behalf of any recalcitrant executor, subject to that executor being able to apply to Court if he or she feels strongly enough to file an objection.
{"title":"Estate deadlock—when unanimity between executors is a pipe dream","authors":"Robert Gardner, S. Minns","doi":"10.1093/tandt/ttab050","DOIUrl":"https://doi.org/10.1093/tandt/ttab050","url":null,"abstract":"\u0000 This article looks at a recent judgment of the Royal Court of Jersey in which two of the five executors sought relief from the Court aimed at breaking the deadlock which had plagued the administration of the estate for much of its 19 years. The Court agreed to a request to delegate the final stages of the administration (which mainly related to selling some apartments in Malaysia) to the court appointed administrator. Whilst final sign off for any material steps rests with the executors themselves, a mechanism has been built into the orders which allows the Viscount of Jersey to sign documents on behalf of any recalcitrant executor, subject to that executor being able to apply to Court if he or she feels strongly enough to file an objection.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42162716","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The effects of Covid-19 are tangible around the globe with emerging and third world countries being particularly affected by the economic and social consequences of the pandemic. The author explains the impact of Covid-19 on the work of foundations and the role of the latter in addressing global challenges. Foundations that are set up in perpetuity are often deemed slow and dilatory when it comes to taking decisions. Covid-19, however, demands fast, not to say unbureaucratic action. This is often contrary to the character of foundations and the way in which many of them pursue their programmatic goals. Foundations, therefore, risk falling short of their social mission and even missing the opportunity to offer society pioneering solutions. Yet, the current crisis has also underlined the importance of strategic partnerships between foundations and other players and of involving local people in bringing about social change. This being said, by their very nature, foundations are eminently predisposed to provide sustainable relief in crises such as Covid-19 and to mitigate long-term societal impact.
{"title":"Covid-19 and the future of charitable foundations—renewal in crisis?","authors":"C. Strasser","doi":"10.1093/tandt/ttab032","DOIUrl":"https://doi.org/10.1093/tandt/ttab032","url":null,"abstract":"Abstract The effects of Covid-19 are tangible around the globe with emerging and third world countries being particularly affected by the economic and social consequences of the pandemic. The author explains the impact of Covid-19 on the work of foundations and the role of the latter in addressing global challenges. Foundations that are set up in perpetuity are often deemed slow and dilatory when it comes to taking decisions. Covid-19, however, demands fast, not to say unbureaucratic action. This is often contrary to the character of foundations and the way in which many of them pursue their programmatic goals. Foundations, therefore, risk falling short of their social mission and even missing the opportunity to offer society pioneering solutions. Yet, the current crisis has also underlined the importance of strategic partnerships between foundations and other players and of involving local people in bringing about social change. This being said, by their very nature, foundations are eminently predisposed to provide sustainable relief in crises such as Covid-19 and to mitigate long-term societal impact.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-07-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48064397","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article is an introduction to private foundations in the Republic of Kazakhstan (RoK), discussing the legal prerequisites of the strong asset protection legislation that have been created. The author identifies and compares how the civil and common law (AIFC) systems are combined in a single country. Both systems and all types of private foundations are analyzed with a view to which are the more flexible and suitable for asset protection, wealth management, inheritance planning, investment and the achievement of charitable objectives. The article also examines under which regime a private foundation can provide a solid tool for wealth structuring and for the reduction of litigation risks.
{"title":"An exploration of Kazakhstan’s private foundations","authors":"Arlan Sarkytbekuly","doi":"10.1093/TANDT/TTAB058","DOIUrl":"https://doi.org/10.1093/TANDT/TTAB058","url":null,"abstract":"\u0000 This article is an introduction to private foundations in the Republic of Kazakhstan (RoK), discussing the legal prerequisites of the strong asset protection legislation that have been created. The author identifies and compares how the civil and common law (AIFC) systems are combined in a single country. Both systems and all types of private foundations are analyzed with a view to which are the more flexible and suitable for asset protection, wealth management, inheritance planning, investment and the achievement of charitable objectives. The article also examines under which regime a private foundation can provide a solid tool for wealth structuring and for the reduction of litigation risks.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45372327","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The article deals with fundamental questions regarding the distribution carried out by a Liechtenstein foundation to another foundation and/or trust instead of a direct distribution to the beneficiaries. In principle, this phenomenon partly falls under the concept that is labelled as ‘decanting’ within the private client law community. One of the key advantages of foundations as compared to other instruments is the high level of stability combined with very limited instruments to change the purpose as well as the beneficial interest. As with trusts, the ‘decanting’ in the field of the private foundation practice seems to be a method to adjust the set-up of the vehicle, leaving old provisions behind that might no longer be compatible with the changed circumstances of the founder’s/settlor’s family. The article deals with the different legal issues involved, such as the ultra-vires-doctrine as well as the relevant issues of unjust enrichment. Finally, the author gives guidelines for practitioners by discussing the recent developments in Liechtenstein case law.
{"title":"Distribution of foundation assets to another foundation or trust—powers of the trustees and claims based on unjust enrichment","authors":"Francesco A. Schurr","doi":"10.1093/TANDT/TTAB031","DOIUrl":"https://doi.org/10.1093/TANDT/TTAB031","url":null,"abstract":"\u0000 The article deals with fundamental questions regarding the distribution carried out by a Liechtenstein foundation to another foundation and/or trust instead of a direct distribution to the beneficiaries. In principle, this phenomenon partly falls under the concept that is labelled as ‘decanting’ within the private client law community. One of the key advantages of foundations as compared to other instruments is the high level of stability combined with very limited instruments to change the purpose as well as the beneficial interest. As with trusts, the ‘decanting’ in the field of the private foundation practice seems to be a method to adjust the set-up of the vehicle, leaving old provisions behind that might no longer be compatible with the changed circumstances of the founder’s/settlor’s family. The article deals with the different legal issues involved, such as the ultra-vires-doctrine as well as the relevant issues of unjust enrichment. Finally, the author gives guidelines for practitioners by discussing the recent developments in Liechtenstein case law.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43554961","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Throughout the brief history of proprietary estoppel, it has been rare to find a case where it was argued that the promisor passed away before the promisee suffers sufficient detriment. Rarer still, to find this promise made jointly by co-owners as tenants-in-common of a property. In Cheung Lai Mui v Cheung Wai Shing [2021], the Hong Kong Court of Final Appeal found the “cut-off” point for assessing detriment in such a case to be the death of the last surviving co-owner—but why should it be? This article explores the theoretical interactions between proprietary estoppel, unconscionability and co-ownership in seeking to answer this question.
在所有权禁止反言的短暂历史中，很少有人认为允诺人在受允诺人遭受足够损害之前去世。更罕见的是，这一承诺是由共同所有人作为一处房产的共同承租人共同做出的。在Cheung Lai Mui v Cheung Wai Shing【2021】一案中，香港终审法院认定，在此类案件中，评估损害的“截止点”是最后幸存的合作社的死亡，但为什么要这样？为了回答这个问题，本文探讨了所有权禁止反悔、不合理性和共有权之间的理论互动。
{"title":"When death is literally the deadline: the “cut-off” point for assessing detriment in proprietary estoppel","authors":"Samuel Yee Ching Leung, Bennett Au-Yeung","doi":"10.1093/TANDT/TTAB059","DOIUrl":"https://doi.org/10.1093/TANDT/TTAB059","url":null,"abstract":"\u0000 Throughout the brief history of proprietary estoppel, it has been rare to find a case where it was argued that the promisor passed away before the promisee suffers sufficient detriment. Rarer still, to find this promise made jointly by co-owners as tenants-in-common of a property. In Cheung Lai Mui v Cheung Wai Shing [2021], the Hong Kong Court of Final Appeal found the “cut-off” point for assessing detriment in such a case to be the death of the last surviving co-owner—but why should it be? This article explores the theoretical interactions between proprietary estoppel, unconscionability and co-ownership in seeking to answer this question.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44405081","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Swiss Family Foundations are not commonly used for asset protection or estate planning purposes due to a de facto prohibition of family maintenance foundation. Since families are often spread over different countries and continents and assets are located in various jurisdictions, contributions of assets to a foundation may very well be an optimal solution, also because these assets no longer fall within the scope of the estate. For this purpose, foundations are set up in jurisdictions like Liechtenstein.
{"title":"Recognition of foreign family foundations in Switzerland","authors":"N. Peter","doi":"10.1093/TANDT/TTAB057","DOIUrl":"https://doi.org/10.1093/TANDT/TTAB057","url":null,"abstract":"\u0000 Swiss Family Foundations are not commonly used for asset protection or estate planning purposes due to a de facto prohibition of family maintenance foundation. Since families are often spread over different countries and continents and assets are located in various jurisdictions, contributions of assets to a foundation may very well be an optimal solution, also because these assets no longer fall within the scope of the estate. For this purpose, foundations are set up in jurisdictions like Liechtenstein.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48170420","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Every year, a substantial number of trustees ‘convert’ their unincorporated charities to incorporated charities. However, there is surprisingly little guidance in charity law books on the powers that trustees have to make and give effect to the decision to incorporate. This article seeks to redress the balance. It will explain what incorporating a charity involves and why it is so popular. It will then set out the powers which charity trustees might have to incorporate an unincorporated charity and the methods for transferring the unincorporated charity’s assets.
{"title":"Incorporating an unincorporated charity","authors":"Matthew Mills","doi":"10.1093/TANDT/TTAB035","DOIUrl":"https://doi.org/10.1093/TANDT/TTAB035","url":null,"abstract":"\u0000 Every year, a substantial number of trustees ‘convert’ their unincorporated charities to incorporated charities. However, there is surprisingly little guidance in charity law books on the powers that trustees have to make and give effect to the decision to incorporate. This article seeks to redress the balance. It will explain what incorporating a charity involves and why it is so popular. It will then set out the powers which charity trustees might have to incorporate an unincorporated charity and the methods for transferring the unincorporated charity’s assets.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46790404","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Registries have lately been introduced in several jurisdictions for the purpose of identifying the beneficial owners of trust property. This article examines the design of the UK registry from an Australian perspective. Problems of coherence and over-inclusion are identified in the way that the registry applies to discretionary trusts. “Control over the trust” senses of “beneficial owner” are examined in the light of good drafting criteria and authoritative statements of trusts law. Whether legislation enacting the registry will withstand future judicial scrutiny is questioned.
{"title":"Trust registries, discretionary trusts and beneficial owners: a dubious gift from civil lawyers?","authors":"J. Glover","doi":"10.1093/TANDT/TTAB034","DOIUrl":"https://doi.org/10.1093/TANDT/TTAB034","url":null,"abstract":"\u0000 Registries have lately been introduced in several jurisdictions for the purpose of identifying the beneficial owners of trust property. This article examines the design of the UK registry from an Australian perspective. Problems of coherence and over-inclusion are identified in the way that the registry applies to discretionary trusts. “Control over the trust” senses of “beneficial owner” are examined in the light of good drafting criteria and authoritative statements of trusts law. Whether legislation enacting the registry will withstand future judicial scrutiny is questioned.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44199643","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Trusts and foundations move onshore in the Gulf","authors":"David Russell Qc","doi":"10.1093/TANDT/TTAB016","DOIUrl":"https://doi.org/10.1093/TANDT/TTAB016","url":null,"abstract":"","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49614752","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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