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PDAC 2015 WSG Mining Networking Cocktail

In order to highlight the global reach and impact that certain industries have, WSG and the Mining Practice Group will be hosting their first ever PDAC Networking Cocktail in Toronto, Canada on Tuesday, 3 March, from 16:00 to 18:00 at Michael’s on Simcoe restaurant.  (Registration: http://www.worldservicesgroup.com/meeting2.aspx?id=980)

WSG members attending the conference will be able to connect in an intimate setting to exchange opinions, best practices and, more importantly, share recent experiences in the nowadays sensitive field of work that encompasses the mining and minerals industries. Members already registered for the event practice in the areas of environmental and energy, as well as foreign investments, securities and capital markets.  

WSG and the Mining Practice Group are looking forward to meeting you all at the event and enjoying an enriching evening in amazing Toronto. The PDAC Convention will take place March 1 - 4 in Toronto, where 1,000 exhibitors and 25,122 attendees from over 100 countries will be in attendance.

For more information, please contact Gaby Saldaña, WSG Practice Group Administrator, [email protected] or 1-713-650-0333.


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Recognition of trusts in civil law jurisdictions. Remarks to case of Olsen v. Norway

It is common knowledge that trusts haven’t exactly received a warm welcome in civil law (ius commune) jurisdictions. It seems to be a result of the incompatibility of traditional trusts with the doctrine of absolute ownership, the numerus clausus property law concept, and the conflict with traditional doctrines of inheritance and matrimonial property law. However, trust structures carry with them a concern that they will be used to circumvent the law, tax evasion or to pursue other goals which are in conflict with public interests or good morals. These concerns have deeper roots than mere adherence to the formal structures of a legal doctrine.

 

The civil law jurisdictions tend to ignore or even reject trusts. They are concerned with their own concepts that the courts usually apply to foreign trusts. Trusts are regarded as creating an agency or mandate. If the trust concerns local assets, it may be regarded by the lex situs as the transfer of ownership and simultaneous creation of an obligation of contractual nature (fiducia). The trustees of a testamentary trust may easily find themselves in the position of a Testamentsvollstrecker (testamentary executor?). To find a functionally corresponding legal instrument is not always possible. Moreover the decisions of the courts concerning the trust structure are scarce and hard to predict. This creates a barrier for the trusts to be active in civil law jurisdictions.

On the other hand the practitioners in the civil law jurisdictions feel the deficit of their jurisdictions not having or recognising the trust concepts, most particularly in the realm of commercial transactions. Over the past few years, the attempt may be observed in continental Europe to respond to the perceived problematic lack of existence of institutes comparable to trust, or trust-like institutes. Apart from Liechtenstein, which has its own Trust Code of 1926 (amended in 2008), the structures corresponding functionally to trusts were implemented in France, Malta, and recently Hungary and the Czech Republic. In Germany the concept of Treuhand is becoming increasingly recognised by the courts as a separate fund. It might be noted that also the foundation sector tends to be more liberal and provides the possibility to use private foundations for the purposes trusts are used in common law jurisdictions (e.g. Austria).

Italy, the Netherlands, Luxembourg, Switzerland and Monaco ratified the Hague Convention on the Law Applicable to Trusts and on their Recognition (1985). Especially, the example of Italy using the opportunity offered by the Hague Convention to establish trusts governed by foreign law over assets located in Italy, for the benefit of Italian beneficiaries or for the advancement of purposes to be carried out in Italy (trust interno) shows us a different way of civil law jurisdiction to the trust without the need of creating its own domestic trust structure. It seems that Switzerland will also follow this path.

It seems that the circumstances are suitable for European law action. It can be noted that the provisions on trusts were included in the Draft Common Frame of Reference and the idea of an EU Directive on Protected Funds is discussed. In connection with the 4th Anti-Money Laundering Directive, it is proposed that public central registers should be set up in each EU country listing information on the ultimate beneficial ownership of companies, foundations, holdings and also trusts. The registers will be interconnected across Europe and access will be made public to those who complete a basic online registration.

The European Court of Justice was confronted with the trust recognition issue in the famous case of Webb v. Webb (C-294/92) (1994). However this decision focuses only on the implications of lex situs rules in connection with the specific features of the trust.

However, the European Free Trade Association (EFTA) Court decision in the case of Olsen v. Norway(1) from July of this year might open new horizons of the EU law. It says that a trust, which pursues a real economic activity within the EEA, can invoke the freedom of establishment and the right to free movement of capital pursuant to the Agreement on the European Economic Area. It means that the member states are prohibited from restricting those rights by their national law. If the European Court of Justice follows this decision, it will have significant implications not only for the tax policy (which was the primary concern of the decision), but also for the general civil law of all EU member states.

In my view, reflecting the developments in the European company law, it follows from the Olsen v. Norway case that all EU states shall recognise the EU trust operating on their territories even if settled by their citizens (Centros case). If this is right, then all EU states seem to be forced to recognise the internal trusts such as Italy. Further, the recognition of the trust must be recognised without further formality (Uberseering case). It would alter the landscape of the law in most of the EU civil law jurisdictions.

The main question seems to be the extent of such trust recognition. In what extent should the national jurisdictions accept the implications of trust structures in the areas such as the right of ownership and other rights in rem, inheritance or matrimonial property law? If these implications are accepted, should not be the trust law harmonised on an EU level?

All in all, I believe that the mentioned decision of the EFTA Court in the case of Olsen v. Norway reflects the current convergence of legal cultures that the latest development seems to confirm, and that is necessarily associated with the destruction of traditional approaches.

(1) http://www.eftacourt.int/fileadmin/user_upload/Files/Cases/2013/3_13_20_13/3_13_20_13_Judgment_EN.pdf

 


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Ideas and initiatives for the Practice Group

Fellow Practice Group members, 

I am very glad of making the first entry of the group’s blog, in which I sincerely welcome you again to WSG’s new International Trade and Investment Practice Group (Latam). This Group was created to exchange opinions, relevant news and comments in the field of international trade and investment, as well as a forum to build professional rapports, especially in Latin America.

The constant changes on the rules governing trade and cross-border investments pose major challenges to companies and consultants around the world. These changes must be assessed from an interdisciplinary approach that adapts to different trends and markets and that encourages the exchange of experiences and knowledge. This goal may be better achieved through a solid and efficient network to build knowledge, share experiences, and generate business among the firms, with the multidisciplinary approach of WSG; these are the main objectives of this Practice Group.


We have the following ideas and activities for the group:


  •      On-line discussion of relevant topics and news: Members are encouraged to share news and exchange opinions through the online interface, mainly through this blog tool. Actually, I will soon start a separate blog discussion on a specific trade issue.
  •      Conference calls and webinars: We may organize conference calls to discuss the group’s initiatives and activities, and webinars to develop continuing education sessions.
  •      Joint publications: Further down the road, we may organize joint publications by the different firms on relevant topics (guides, articles, year in review, etc.).
  •      Meetings: Soon, we should be able to meet at least every year or every two years, in order to strengthen our ties and discuss relevant topics.
  •      Use of free advice policy: Learn and correctly use WSG’s free advice policy, to access free advice on specific matters from other WSG members.

Please share your ideas through comments to this blog entry, so we can all jointly build the group’s plan for the forthcoming years.



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WSG TMC Practice Group meets in Paris on 15 October, 2014

On 15 October 2014, Members of the WSG (World Services Group) Technology, Media and Communications (TMC) Practice Group attend a one-day seminar in Paris at the offices of the French WSG member Jeantet. Members have the occasion to present themselves, debate interesting legal topics in their jurisdiction, evaluate past co-operation and ways to better co-operate in the future. For more information see www.worldservicesgroup.com
Gerrit Vandendriessche, TMC Group Leader


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WSG's members are independent firms and are not affiliated in the joint practice of professional services. Each member exercises its own individual judgments on all client matters.

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