The Supreme Court's lengthy but interesting judgment in
Akers and others (Respondents) v. Samba Financial Group
(Appellant) [2017] UKSC 6 can be read in full at the Resources Page.
It contains a highly informative overview of the perceived but
false "dichotomy" between what might be described as a proprietary
school and the personal remedy school of thought, as it places each
facet of the trust concept within the context of its
application.
It is simply not enough for certain civilian lawyers and
legislators to dismiss the trust as a mere "contrat", as the
Supreme Court ably demonstrates. Cleansing the civilian
stables of such misconceptions is almost acheived by the Supreme
Court in this judgment, were the occupants to take notice of
it.
The concept of a trust being engrafted or impressed upon a
property right in a civil law country, which otherwise does not
recognise it, is placed within the context of the enforcement
against the "trustee", and under the limitation of "Equity's
darling" or blue eyed boy (per Professor Julian Farrand QC) , the
bona fide purchaser for value without notice. Whilst that
might excuse certain, but certainly not all, civilian
liberties with the trust concept, The UKSA's judgment denies
any absolution to the French administration's attempt to treat it
exclusively as a contract, which a trust most certainly is not.
Perhaps my Parisian confrères might like to bring those sinners
to the secular confessionnal, at some point, before Mr Lieb in part
responsible for the inadequate drafting of article 792-0 bis I CGI
during his spell at the DGI does any more damage in New York.
I will update this post in an incremental manner in that it is
relevant to the recognition of trusts generally abroad, and the
judgment is of consequence in relation to trusts or remedies in
Continental jurisdictions.