Lloyd's Maritime and Commercial Law Quarterly
Book Reviews
COMMERCIAL TRUSTS IN EUROPEAN PRIVATE LAW. Edited by Michele Graziadei, Professor of Comparative Private Law, Facolta di giurisprudenza, Universitá del Piemonte orientale, Ugo Mattei, Professore Ordinario di Diritto Civile, University of Turin and Alfred and Hanna Fromm Professor of International and Comparative Law, University of California, and Lionel Smith, James McGill Professor of Law, McGill University. Cambridge University Press, Cambridge (2005) xliv and 561 pp, plus 23 pp Index. Hardback £85.00 ($150.00).
The publication of any scholarly work on trusts, and analogous institutions, in European private law is very much to be welcomed. Substantive information on this area published in English is difficult to come by, as is comparative analysis. This is the sixth book to be published in the Common Core of European Private Law series. It is explained that, “The aim of the common core methodology is to observe and know something about the law in its present state” (p 30). By this limited aim, the book is a success. The editors have gathered a large amount of useful information about trusts and similar concepts around Europe. Nevertheless, the reader may also feel at times that the book lacks a certain underlying unity. This is the second book published by Cambridge University Press in recent years in this area (following the impressive, scholarly work by M Lupoi, Trusts: a Comparative Study
(2001)). The inter-relationship of the two works is never explained or, indeed, developed. Furthermore, the excellent work which resulted in the publication of D Hayton (ed) Principles of European Trust Law
(1999) is scarcely considered.
The focus of the book is solely on commercial aspects of inter vivos
trusts and management of property. Whilst this is, perhaps, understandable, it is also somewhat regrettable. Some of the most acute problems in the offshore trust world concern the interaction of trusts with the succession laws of mainland Europe. In particular, the key “commercial” problem of protecting inter vivos
trusts from attack by claims of forced heirship arising in civilian jurisdictions brought by relatives of the settlor is a pressing problem which is omitted from discussion in the book. Moreover, the authors explain at some length why they chose the word “trust” in the title of the book (see pp 32–34); but make no attempt to explain what they understand by the word “trust” (compare Art 2 of the Hague Convention on the Law Applicable to Trusts and on Their Recognition 1985 and Art 1 of the Principles of European Trust Law). This is understandable to the extent that the authors seek to ascertain how lawyers in different jurisdictions deal with a particular factual situation and do not wish to distort that answer by using loaded legal terminology such as the word “trust” in asking the question. But, if one is to examine the results of this study and consider whether civilian states might usefully introduce the “trust” into their domestic legal systems, one needs to know exactly what one means by this.
There is a useful bibliography for each country at the start of the book, although there is no bibliography referring to more general comparative works in the area. The book manages to devote 11 pages to a list of abbreviations but finds no room, regrettably, for a table of cases or legislation from the various jurisdictions.
The book is divided into three parts. The first part, “setting the scene”, looks at a range of topics intended to provide a backdrop to the ensuing study. At times, the linkage of these topics is rather
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