
Oliver Passmore
Partner | Legal
Jersey

Oliver Passmore
Partner
Jersey
Services
We have the expertise to handle the most demanding transactions. Our commercial understanding and experience of working with leading financial institutions, professional advisers and regulatory bodies means we add real value to clients’ businesses.
Sectors
Our sector approach relies on smart collaboration between teams who have a deep understanding of related businesses and industry dynamics. The specific combination of our highly informed experts helps our clients to see around corners.
We have the expertise to handle the most demanding transactions. Our commercial understanding and experience of working with leading financial institutions, professional advisers and regulatory bodies means we add real value to clients’ businesses.
Legal
Corporate and Fiduciary
Consulting
Banking and Finance
Corporate
Dispute Resolution
Employment law
Intellectual Property
Investment Funds
Listing services
Local Legal Services
Our sector approach relies on smart collaboration between teams who have a deep understanding of related businesses and industry dynamics. The specific combination of our highly informed experts helps our clients to see around corners.
Ogier provides practical advice on BVI, Cayman Islands, Guernsey, Irish, Jersey and Luxembourg law through our global network of offices across the Asian, Caribbean and European timezones. Ogier is the only firm to advise on this unique combination of laws.
Keep up to date with industry insights, analysis and reviews. Find out about the work of our expert teams and subscribe to receive our newsletters straight to your inbox.
Fresh thinking, sharper opinion.
We get straight to the point, managing complexity to get to the essentials. Our global network of offices covers every time zone.
About us
Corporate social responsibility (CSR)
Diversity, equity and inclusion
Information security
Innovation
Sustainability
No Content Set
Exception:
Website.Models.ViewModels.Components.General.Banners.BannerComponentVm
Insight
07 August 2015
Jersey
2 min read
This article first appeared on the PCA Blog
Until relatively recently there had been little judicial guidance regarding the use and effect of trust jurisdiction clauses.
That changed following a series of judgments in the Jersey case of Crociani, culminating in the judgment of the Privy Council in November last year. Crociani & Ors v Crociani & Ors [2014] UKPC 40 provided a number of lessons to be learned for advisers.
In particular, the Privy Council considered the meaning of a clause in a trust deed that provided for a change of proper law, to that of the place where a successor trustee was resident or incorporated, and 'thereafter the rights of all persons and the construction and effect of each and every provision hereof shall be subject to the exclusive jurisdiction of, and construed only according to the law of the said country which shall become the forum for the administration of the trusts hereunder' (emphasis added).
The highlighted expressions are often seen in so-called 'jurisdiction clauses', however the board considered that as stand-alone expressions, they had no well-established meaning.
The appellant contended that this phrase was a reference to the court which is to enforce the trust. However the Privy Council held that this phrase had no well-established technical significance. For example in certain circumstances, 'forum' can be a reference to a court, but it can equally be used to refer to a place for any purpose.
As a matter of construction of the deed in question in this case, the Privy Council considered it perfectly feasible that the draftsman intended to stipulate where the trust's affairs were to be organised or run, as it could affect the way in which the trustees are taxed.
Again, the appellant contended that this phrase conferred exclusive jurisdiction on the courts of the country in question. However the Privy Council held that, properly construed in the context of the deed in question, the purpose of the exclusive stipulation was to ensure that all issues concerning the trust were to be governed by the same law, thereby avoiding the risk of dépeçage, permitted by article 9 of the Hague Convention on Trusts 1985.
The guidance from the Jersey Courts is clear: if the intention is to identify that the proper law is to apply to all aspects of the trust, from its inception to its execution, there are better and clearer ways of saying so than by referring to the 'exclusive jurisdiction' of the proper law.
If the intention is to tell the world (or its tax authorities) that a trust is domiciled and administered in a particular place, there are better and clearer ways of saying so than by referring to the 'forum for administration'.
Moreover a reference to 'exclusive jurisdiction' or 'forum for administration' may have the consequence that, whatever the intention of the draftsman, exclusive jurisdiction is conferred over all trust disputes.
The intended meaning should therefore be readily apparent from the trust instrument. If it is not, but the instrument contains a power of amendment, it may be a proper and prudent use of that power to introduce a clearer provision.
Ogier is a professional services firm with the knowledge and expertise to handle the most demanding and complex transactions and provide expert, efficient and cost-effective services to all our clients. We regularly win awards for the quality of our client service, our work and our people.
This client briefing has been prepared for clients and professional associates of Ogier. The information and expressions of opinion which it contains are not intended to be a comprehensive study or to provide legal advice and should not be treated as a substitute for specific advice concerning individual situations.
Regulatory information can be found under Legal Notice
Sign up to receive updates and newsletters from us.
Sign up
No Content Set
Exception:
Website.Models.ViewModels.Blocks.SiteBlocks.CookiePolicySiteBlockVm