Conference Report for Europaeum
Functioning of Trust
The Centre for Comparative Law, Faculty of Law Charles University in Prague
May 15 – 16, 2015
The international conference on “Functioning of Trust” organized by the director of the
Centre for Comparative Law, Professor Luboš Tichý, took place in Prague on May 15-16,
2015. The conference was a follow up to the conference on trust organized by the Centre in
2013, which inquired into the main categories of trust, an institute recently codified in the
Czech Republic in the form of fiduciary fund. Our long-term project on trust has continued
with this conference that looked into the functioning of trust from a comparative perspective.
It focused on four fundamental areas: asset of trust, control mechanisms of trust, corporate
governance issues in relation to trustee, and finally the issues of trust in the context of
international private law and recognition of a foreign trust.
The conference met with a great interest of both academics and professionals. More than one
hundred people attended the conference. The speakers came from traditional trust
jurisdictions, as well as from the mixed jurisdiction of the Canadian province of Quebec,
whose Civil Code was the main source of inspiration for the Czech legislator, and from the
continental jurisdictions, which have adopted either the institute of trust or a similar form of
asset management into their legal system.
First section of the conference dealt with the issue of asset of trust (its ownership). It focused
foremost on the questions to whom the asset belongs and what it is that characterizes the asset
of trust as a whole, in particular in the context of the Czech regulation of trust. Professor
Karsten Schmidt of Bucerius Law School analysed the shift from bipolar, contract-like
understanding of trust towards a more complex conceptualization of trust as an organization
in German scholarship. Dr. Popovici of McGill Law School, Dr. Swadling of Oxford, and Dr.
Ambruz compared the understanding of ownership of the trust asset in the jurisdictions of
England, Quebec, and Curacao with the Czech regulation.
In the second section of the conference, Professor Lionel Smith of McGill, Professor Attila
Menyhárd of Eötvös Loránd University, Dr. Corrado Malberti of the University of
Luxembourg, and Dr. Lucie Josková of Charles University discussed the issue of corporate
governance, focusing in particular on rights and duties of a trustee.
The following section examined the issues especially relevant for the Czech Republic, given
its negative experience with funds in the 1990s, and dealt with problems of misuse of trust
law, in particular to the detriment of creditors. The ownership of trust asset originates in a
way that has not been familiar to the Czech legal system so far and that raises worries about
frauds against trust asset to the detriment of third parties. The section focused on possible
control mechanisms that might be available either through private law means (control
mechanisms within the trust) or through public law means (registration; creation of a
specialized supervisory agency). Dr. Rainer Kulms of the Max Planck Institute for
Comparative and International Private Law in Hamburg analyzed the interface between trust
law and capital market law, while Dr. Breen of the University College Dublin examined
regulation of charitable trust. Dr. Braun of Oxford and Dr. Pihera then focused on some the
issues of misuse of trust.
The final section addressed the issues of conflict of laws and international civil process.
Professor Dutta of the University of Regensburg and Professor Tichý of Charles University
examined the role of the 1985 Hague Trust Convention, the question of relevant legal order
that governs the trust, and inquired into the issue of recognition of a trust created under a
different jurisdiction.
May 25, 2015
Prof. Dr. Luboš Tichý