Trusts and Choice of Law in South Korea: The Case for Adopting the Hague Trusts Convention
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Despite having recognised the trust for 60 years now, South Korean law does not contain specific choice of law rules applicable to trusts. This is a regrettable state of affairs in our increasingly globalised world, where incidences of cross-border trust disputes will only be on the rise. This paper argues that the lack of a dedicated set of choice of law rules relating to trusts causes much confusion and uncertainty, not only as to how South Korean courts would characterise a trust dispute and the inconsistent connecting factors which would apply, but also in relation to the scope of the applicable choice of law rules (whichever they may be) and the special difficulties raised by a breach of trust claim. All these difficulties derogate from a proper recognition of the trust as a distinctive legal device, and fail properly to protect the autonomy and legitimate expectations of the parties. The paper suggests that these problems would easily fall away if the South Korean legislature adopts the Hague Trusts Convention.
Abstract
Despite having recognised the trust for 60 years now, South Korean law does not contain specific choice of law rules applicable to trusts. This is a regrettable state of affairs in our increasingly globalised world, where incidences of cross-border trust disputes will only be on the rise. This paper argues that the lack of a dedicated set of choice of law rules relating to trusts causes much confusion and uncertainty, not only as to how South Korean courts would characterise a trust dispute and the inconsistent connecting factors which would apply, but also in relation to the scope of the applicable choice of law rules (whichever they may be) and the special difficulties raised by a breach of trust claim. All these difficulties derogate from a proper recognition of the trust as a distinctive legal device, and fail properly to protect the autonomy and legitimate expectations of the parties. The paper suggests that these problems would easily fall away if the South Korean legislature adopts the Hague Trusts Convention.
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