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CHOICE OF LAW FOR CROSS-BORDER TRUST DISPUTES IN JAPAN: THE CASE FOR ADOPTING THE HAGUE TRUSTS CONVENTION

CHOICE OF LAW FOR CROSS-BORDER TRUST DISPUTES IN JAPAN: THE CASE FOR ADOPTING THE HAGUE TRUSTS CONVENTION

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Abstract: The treatment of trusts in Japan’s private international law is severely underdeveloped. The lack of a dedicated set of choice of law rules relating to trusts causes much confusion and uncertainty, not only as to how the Japanese 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. This article suggests that these difficulties are easily surmountable by adopting the Hague Trusts Convention, where a consistent set of choice of law rules emerge.

Keywords: Japan; trusts law; private international law; Hague Trusts Convention; choice of law; autonomy

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