Abstract
Equity is a major area of contrasting jurisprudence. While trusts
evolved in England over centuries from the Roman fideicomissum and elements of Germanic law, the development in civil law countries was once forestalled by the civil law’s insistence on unity of title. Nevertheless, in the last century, we saw civil law catching up with common-law with its recognition and use of trusts. Recent groundbraking decisions of the European Court of Justice such as the Olsen case in 2014 and the Panayi case in 2017 are expected to boost the trust, at least on European territory. The aims of the Master’s thesis were to analyse the legal recognition of classic three-party Anglo-Saxon foreign trusts on the other side of the Atlantic, namely in the civil law countries of Argentina and Brazil. In this context, existing codes, statutes and regulations regulating the foreign trust were investigated. Moreover, relevant domestic case law and statements of public authorities were elaborated and discussed. As a result, it can be said, that Brazilian courts and authorities maintain to date a sceptical and restrictive position towards foreign trusts, nonetheless giving thoughts in public of how to tax resident settlors and/or beneficiaries.
This despite of article 17 of the Law of Introduction to the Brazilian Legislation (Decree No. 4,657 of September 4, 1942) that stipulates that perfected legal transactions and acquired rights shall always be observed and respected if they do not offend national sovereignty, public order or good morals. As a result, and despite of the unclear interpretation of Brazilian courts and authorities to date, trusts created under foreign law should be recognized for Brazilian legal purposes. Argentina, on the other hand, on 1994 partially adopted the common law trust concept in its national laws and has a vivid and continuing jurisprudence in this context. Foreign trusts, if properly established according to a catalog of criteria elaborated in this thesis, do reach full legal recognition in Argentina. As a result and in order to cope with continous political and economical instability as well as to further safeguard financial privacy, the trust is to be expected to play a predominant role in the future in these two countries.