Party Autonomy in International Property Law - Peace Palace Library

B. Private International (Property) Law
devices that protect the beneficiary of a trust. For instance, the Anglo-
American tracing rules have a functional equivalent in the concept of real
subrogation. Hence, French substantive law avoids a larger debate on the
recognition of foreign trusts. 56
Belgian law has not made as much progress in substantive law. For a long
time, Belgium made no efforts to recognise the effects of foreign trusts on
Belgian territory. In contrast to the Netherlands, Belgium did not ratify
the Hague Convention. However, this situation proved to be unsustai n-
able, and Belgian law has taken certain steps in the field of PIL. In the PIL
Code, Article 124 provides that a trust is governed by the law chosen by
the settler, and, if he has not made a choice of law, by the law of the State
on which territory the settler has its habitual residence at the moment of
the creation of the trust. Although the Belgian legislator emphasised during
parliamentary works preceding the Act that this Act could not affect
the numerus clausus principle, 57 it indirectly opens up Belgian property
law. If, for instance, an American beneficiary makes a claim on financial
instruments that have been deposited with a Belgian clearing institution,
the choice of law between parties will be able to have its effect.
However, the Belgian legislator has – as did the French legislator in 2007 –
a reluctant attitude: the legislator has excluded from the scope of the Trust
provisions all matters with regard to the validity of the acts of acquisition
or transfer of property rights on the trust property, as well as the transfer
or protection of third party-acquirers of the property (Article 125, § 2 PIL
Code). It does not emerge from this provision that all property law, and
especially the proprietary structure of the trust itself, is excluded from the
scope, since the introduction of the trust chapter in the PIL Code would
otherwise have been useless and senseless. However, it demonstrates how
the Belgian legislator – in amending the PIL – followed the same line of
reasoning and retained the same reluctance as the French legislator in
amending the substantive law with regard to the fiducie.
56
French case law adopted a lex rei sitae approach, applying the law of the situs
of the trust property: Court of Appeal Paris 10 January 1970, Recueil Dalloz
1972, 122, note P. Malaurie. However, this position did not prevent French
case law from accepting the obligatory effects of a trust device; some case law
even extends this solution to proprietary effects. See the case law cited by G.
Khairallah, o.c., n° 236 et seq.
57
Parl. St. Senaat 2003-04, 3-27 / 7, 236.
140
Vincent Sagaert
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