Trust i inne stosunki powiernicze w prawie porównawczym i prawie prywatnym międzynarodowym

Abstract

The book is dedicated to the Anglo-American notion of a trust, as well as to other fiduciary instruments which are used on the European continent and in Poland. Trusts, extensively employed in the legal practice of the common law systems, nowadays often interact with the legal territories of the countries where such devices are unknown. Moreover, Polish businesses and individuals encounter trusts and various trust-like devices when undertaking activities abroad. In such transnational situations, trusts present a basic difficulty for the authorities and legal practitioners relating to the determination of the applicable law. Using experiences from foreign literaturę and judicature, the author formulates propositions for solving practical conflict-oflaws problems occurring in cross-border trust situations. These propositions will assist courts, notaries and legal practitioners in dealing with trusts, being unknown in Polish legal system. The conflict-of-laws analysis is preceded by an extensive comparative study of the trusts and other fiduciary relationships. The investigation is carried out in three dimensions: historical, functional and structural. With a view of determining the conflictof-laws rules to be applied in trust-like situations, the author employs in particular the functional method, analysing the socio-economic goals of trusts and searching for their distinctive features, so in order to indicate the equivalent institutions known in the continental legal systems. The work encompasses a broad investigation into the practice of courts in various European countries dealing with the cross-border cases involving trusts. These experiences are then used in order to offer solutions under the Polish private international law. The book examines also the Hague Convention on the Law Applicable to Trusts and on their Recognition of 1985 and postulates that Poland should ratify the Convention.