AABA How Jersey shot itself in the foot: an analysis of the implications of the Trusts (35 pages)

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changes will be to enhance transparency and accountability,
something that can only be of benefit to those who establish trusts;
those who administer them and, indeed, those who seek to challenge
them. In actual effect, they will limit the possibility of sham trusts
rather than increase it and enhance rather than reduce transparency
of the overall trust settlement in the case of subsequent disputes
between the parties.


It is curious that he referred to ‘sham trusts’. Paul de Gruchy made clear in
his comments that existing trusts in Jersey appear to be dangerously close
to having that status. It is true that under Jersey law this ambiguity has
been removed by the 2006 law. The sham has been legitimised. But, that is
only true of Jersey. It is not true of elsewhere. Jersey might now say black
is white, but everywhere else it remains black; a fact they seem to have
ignored.

And the statement made by Malcolm Campbell is disingenuous. The reasons
are:

1.

There is no register of trusts in Jersey. No one knows how many there

are, for example;


2.

There is no requirement for a trust in Jersey to publish its trust deed,

to anyone;

3.

The duty of a trustee in Jersey is to conceal the identity of the

settlor, the trust deed and the actions of the trust. This is implicit in
the professional relationship of client confidentiality, which is not in
any way over-ridden by statute in Jersey with regard to trusts. This
duty is reinforced by the law of Jersey, as is noted in section 6,
below;

4.

No trust has to file accounts in Jersey, and if the trust is created for a

non-resident person they do not have to submit tax returns.


To therefore suggest that what Jersey is doing is to ‘enhance transparency
and accountability’ is misleading: there is no concept of either transparency
or accountability inherent in Jersey trusts or the law and practice of them
and as such enhancement is not possible. Doubling zero disclosure remains
zero disclosure. And this is exactly what the law intends should be the case:
Article 25 of the Trusts (Jersey) Law 1984 (which is unchanged by the new
law) says:

Subject to the terms of the trust and subject to any order of the
court, a trustee shall not be required to disclose to any person, any
document which –

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