Guernsey
| Jurisdiction | United Kingdom |
| Pages | 417-433 |
| Author | Elaine Gray,Karen Le Cras |
25
GUERNSEY
Elaine Gray and Karen Le Cras
A. Introduction 25.01
B. Jurisdiction 25.03
e Hague Convention on the Law
Applicable to Trusts and on eir
Recognition Conict of Law Rules 25.04
Additional Conventions 25.12
C. Recognition and Enforcement
of Foreign Judgments and Orders 25.13
Foreign Law Provisions 25.13
Foreign Judgments 25.15
Statutory Enforcement 25.16
Common Law Rules 25.17
Letters of Request 25.18
D. Reserved Powers 25.19
Protectors 25.19
Statutory Reserved Powers 25.24
Sham 25.26
E. Asset Protection and Insolvency 25.27
Fraudulent Disposition Legislation 25.27
Co- operation in Insolvency Matters 25.31
F. Removal and Retirement of Trustees
and Protectors 25.33
Court’s Powers to Remove 25.33
Voluntary Retirement and Statutory
Powers of Retirement 25.35
Indemnities 25.38
G. Rights to Information 25.40
Condentiality Statutes 25.40
Statutory Provisions in Relation to
Rights to Information 25.42
Letters of Wishes 25.48
Protectors’ and Settlors’ Rights to
Information 25.49
H. Guidance to Trustees, Protectors,
or Enforcers 25.50
Statutory Provisions and Administrative
Actions 25.51
I. Involvement of Charitable Interests 25.63
J. Alternative Dispute Resolution 25.66
K. Procedural Issues 25.70
Court Structure 25.70
e Bar 25.71
Representation and Capacity 25.72
Appea ls 25.73
Costs 25.75
L. Special Legislation 25.76
A. Introduction
e Bailiwick of Guernsey is a dependency of the British Crown, with its own govern-
ment and legal system.1 e roots of Guernsey law can be traced to the customary laws of
Normandy which remain inuential in certain areas. However, in modern times the inu-
ence of English law has increased and is now dominant, especially in the area of trust and
company law.
Guernsey’s statutory regime for trusts is found in the Trusts (Guernsey) Law, 2007 (‘the 2007
Law’), which came into eect on 17 March 2008.2 In many respects the 2007 Law is similar
to the English legislative provisions governing trusts and for that reason the Guernsey courts
(the Royal Court and the Guernsey Court of Appeal) will oen have regard to decisions of the
1 In this chapter we are dealing only with the position in the island of Guernsey and references to Guernsey
should be construed accordingly; Alderney and Sark are separate jurisdictions and are not touched on here.
2 Replacing and repealing the Trusts (Guernsey) Law, 1989.
25.01
25.02
Elaine Gray and Karen Le Cras, Guernsey In: International Trust Disputes. Second Edition.
Edited by: Steven Kempster, Morven McMillan, Alison Meek, Oxford University Press (2010).
© Oxford University Press. DOI: 10.1093/oso/9780198832737.003.0025
418 :
English courts on trusts matters. In particular, although decisions of the Supreme Court on
English trust matters are not binding on the Guernsey courts, such decisions will be highly
persuasive on issues which share similar legislative provisions. e ultimate court of appeal
in Guernsey is the Judicial Committee of the Privy Council; decisions referred to the Judicial
Committee from the Guernsey Court of Appeal are binding on the Guernsey Courts.
B. Jurisdiction
e Hague Convention was extended to Guernsey in unamended form on 28 April 1993.
e Hague Convention onthe Law Applicable toTrusts and oneir
Recognition Conict ofLawRules
e Guernsey courts will generally follow English common law conicts of law principles,
subject to the specic provisions of the 2007 Law governing conicts of law and the jurisdic-
tion of the Guernsey courts. To that end, the 2007 Law is split into several parts; some apply
to all trusts,3 some only to Guernsey law trusts,4 and some only to foreign law trusts.5
Under s 4 of the 2007 Law, where the proper law of a trust is Guernsey (a ‘Guernsey trust’) the
Royal Court has jurisdiction. For all other trusts, the Royal Court has jurisdiction where:(i)
a trustee of the trust is resident in Guernsey; (ii) any property of the trust is situated or ad-
ministered in Guernsey; or (iii) the terms of the trust provide that the Royal Court is to have
jurisdiction.6
e main provision in the 2007 Law dealing with conict of laws is s 14 which establishes a
conict of law framework relating to Guernsey trusts. Section 14(1) provides that, subject to
the terms of the trust, all questions arising in relation to a Guernsey trust or any disposition
of property into a trust are to be determined solely by reference to Guernsey law.
e matters so to be determined are:
(a) the capacity of the settlor;
(b) the validity, interpretation, or eect of the trust (including any variation7 or
termination8);
(c) the administration of the trust (including questions about the functions, appoint-
ment, and removal of trustees and enforcers);
(d) the existence and extent of any functions in respect of the trust (including powers
of variation, revocation, and appointment and the validity of any exercise of such
functions); and,
(e) the distribution of trust property.
3 Parts I, IV and V of the 2007 Law.
4 Part II of the 2007 Law.
5 Part III of the 2007 Law.
6 e 2007 Law, s 4(1)(b).
7 As to which, see A and C v PQ, RS and T Trustees Ltd [2019] GRC013.
8 As to which, see Rusnano Capital AG (in liquidation) v Molard International (Ptc) Ltd and Pullborough Int Corp
[2019] GRC 011.
25.03
25.04
25.05
25.06
25.07
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