ABSTRACT
Since its reception in civil law Asia in the early twentieth century, trust law in the region has developed certain characteristics that may seem anomalous when compared to the practices in England, the United States, and other common law jurisdictions. However, from both historical and transnational perspectives, these characteristics can be seen as products of historical contingencies – including the trust’s English aristocratic heritage, its transformation during its American reception, and doctrinal innovations that emerged at different stages of its diffusion. These apparent anomalies also reflect the fact that, in civil law Asia, trusts were used primarily in commercial contexts – for facilitating debt and equity financing, supporting corporate transactions, and structuring business ventures. This stands in contrast to the prevailing emphasis in most common law jurisdictions on donative and intergenerational purposes, where commercial uses of trusts, though present, are often less central.
Complicating this picture further is the recent rise of trusts used for family asset management and succession planning. This traditional application trusts – long common in common law jurisdictions – has introduced practical difficulties and tensions with family law principles and mandatory succession rules that remain central to civil law jurisdictions. Courts and commentators across Asian civil law jurisdictions continue to grapple with these challenges. Nevertheless, these emerging trends in the Asia-Pacific region, when viewed alongside broader historical and comparative perspectives, may open new avenues for understanding and shaping the global transformation of trust law.
Tamaruya, Masayuki, Trust Law in Civil Law Asia: Taking Stock (February 1, 2025) in James Fisher (ed), Common Law Forms in Civil Law Asia; Asian Journal of Comparative Law (forthcoming).
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