Cross-Border Trust Disputes and Choice of Law in East Asia

Choosing a New Governing Law for a Trust with Mainly English Elements: How Capacious Is the Wiggle Room in Terms of Its Implementation in an English Court?

“…The actual decision in terms of whether Saudi Arabian law is applied and picked through the application of articles 6, 7, and 15 is not necessarily required in terms of using what the logic taken by the courts is coherent or whether the piece-by-piece judgments have created challenges to interpretation. When looking at this case, the very essence and purpose of the Convention came into question, and it shows that the key aim of the Convention was to establish the law that is applicable to the trust in question (Liew, 2021a(Liew, , 2021b, something which the Court of Appeal identified and then sought to apply in this case (Harris, 2018). However, the very fact that it was possible to stay the proceedings on the grounds of lack of jurisdiction results in a particularly circular argument that could lead to the question of jurisdiction never making it before the court in the first place (Waters and Grozinger, 2014).…”

“…It is, therefore, entirely possible to see how these types of cases could create a situation where only personal remedies were available within that jurisdiction full stop; there's been no specific error in either of the jurisdictions; they simply do not match in terms of the rights offered to the individuals involved (Hayton, 2016). Where this type of scenario emerges, the Convention arguably falls down, and the decisions from the courts become inconsistent, making it difficult for those involved in the establishment of trust, so those seeking to rely upon trusts selected to determine how jurisdictions are likely to be tackled in the event of the dispute, particularly where there is an insolvency and the tracing of assets becomes even more important for those individuals involved (Liew, 2021a(Liew, , 2021b.…”