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DRPS : Course Catalogue : School of Law : Law

Postgraduate Course: Comparative and International Trust law (LAWS11243)

Course Outline
SchoolSchool of Law CollegeCollege of Arts, Humanities and Social Sciences
Credit level (Normal year taken)SCQF Level 11 (Postgraduate) AvailabilityNot available to visiting students
SCQF Credits20 ECTS Credits10
SummaryThis course explores the essential nature of trusts, as well as their core features, by examining different conceptual approaches that are taken to ¿trusts¿ across selected jurisdictions in common law, civil law and mixed legal jurisdictions. In doing so it shows the flexibility and diversity of the concept and how different models of trusts have circulated over time and space.

The course further examines the values underpinning certain regulatory choices across a number of jurisdictions as well as the boundaries of trust law and what is and what is not permitted across jurisdiction. In addition to examining trusts in the doctrinal context of specific legal systems, the course also considers trusts in a conflict of laws perspective.

The course examines the notion of 'trust' from a functional perspective. It is not limited to any particular system of 'trust law' and, in particular, it is not a course devoted to the ¿common law trust¿ only, being international and comparative in its approach. The trust jurisdictions considered include England and Wales, the United States of America, New Zealand, selected offshore jurisdictions, mixed legal systems (such as Scotland, South Africa and Quebec) and civil law systems, including, for instance, Germany and France but also Italy. Alongside selected mainstream trust jurisdictions, this course also considers European harmonisation projects, and other international trust instruments.

This course does not require any previous knowledge of trust law. However, it does presuppose a basic knowledge of EACH of the following: the law of obligations, property law, and insolvency law; some understanding of succession law and international private law is also desirable. The course also presupposes familiarity with basic comparative law methodologies as well as a basic understanding of the concept of civil law, common law and mixed legal jurisdictions.
Course description The aim of the course is to familiarise students with the advanced study of the law of trusts and to encourage them to analyse national solutions to the problems of trust law in comparative perspective. Students will also be encouraged to evaluate the impact of the use of trusts and of functionally similar instruments from a socio-economic perspective.

1. Outline content

Introductory seminar: Studying trusts through a comparative lens
Conceptualising trusts as a property right
Conceptualising trusts as an obligation - I
Conceptualising trusts as an obligation - II
Conceptualising trusts as a patrimony

The boundaries of trust law: trusts without beneficiaries
The boundaries of trust law: sham/illusory trusts
The boundaries of trust law: dead hand control
Trusts: The Essentials
Trusts and Private International Law

2. Student Learning Experience

The course will be taught by a series of 10 two-hour seminars, for which students will be provided in advance with reading lists, and questions to guide their reading and their development of ideas. Active participation in seminar discussions is an essential part of this course and the learning experience. All students will be expected to be prepared to give an oral presentation concerning a particular paper on the reading list or a specific topic.
Entry Requirements (not applicable to Visiting Students)
Pre-requisites Co-requisites
Prohibited Combinations Other requirements None
Course Delivery Information
Academic year 2023/24, Not available to visiting students (SS1) Quota:  25
Course Start Semester 1
Timetable Timetable
Learning and Teaching activities (Further Info) Total Hours: 200 ( Seminar/Tutorial Hours 20, Programme Level Learning and Teaching Hours 4, Directed Learning and Independent Learning Hours 176 )
Assessment (Further Info) Written Exam 0 %, Coursework 100 %, Practical Exam 0 %
Additional Information (Assessment) The course is assessed by a 5,000-word essay. A choice of topics will be given.
Feedback All students will be expected to be prepared to give a brief oral presentation concerning a particular paper on the reading list or on a specific topic. This will not be part of their summative assessment but will enable them to develop soft skills and to explore certain topics in greater depth.

In addition, they will be given the opportunity to submit a piece of formative written work. The formative assessment does not contribute toward the overall course mark. Feedback on the formative assessment may be provided in various formats, for example, to include written, oral, video, face-to-face, whole class, or individual. The course organiser will decide which format is most appropriate in relation to the nature of the assessment.

Feedback on the formative work will be provided in time to be of use for the summative assessment.

Feedback on the summative assessment will be provided in written form via Learn, the University of Edinburgh's Virtual Learning Environment (VLE).
No Exam Information
Learning Outcomes
On completion of this course, the student will be able to:
  1. Understand the conceptual approaches to the notion of ¿trust¿.
  2. Understand the core features of trusts across a number of jurisdictions and legal traditions.
  3. Appreciate the comparative approach to the study of trusts.
  4. Have an ability to comment critically and engage in debate on the issues examined.
  5. Understand different values underpinning regulatory choices in this area of law.
Reading List
The essential reading for each seminar is indicated on the handout accompanying the particular seminar. Handouts will be issued electronically on LEARN at least one week before each seminar.
Students are expected to read the assigned material prior to each seminar and to be able to discuss it in detail.

The literature on trust law is vast. Among the books that will be frequently used and referred to are:

* M Graziadei, U Mattei and L Smith (eds), Commercial Trusts in European Private Law (CUP 2005)
* M Graziadei and LD Smith (eds), Comparative Property Law: Global Perspectives (2017)
* D J Hayton (ed), Modern International Developments in Trust Law (Kluwer Law International 1999)
* D J Hayton (ed), Extending the Boundaries of Trusts and Similar Ring-fenced Funds (Kluwer Law International 2002)
* D J Hayton (ed), The International Trust (3rd edn Jordans 2011)
* R Helmholz and R Zimmermann (eds), Itinera Fiduciae: Trust and Treuhand in an Historical Perspective (Duncker and Humblot 1998)
* L Ho and R Lee (eds), Trust Law in Asian Civil Law Jurisdictions (CUP 2013)
* YK Liew and M Hardin, Asia Pacific Trusts Law, vol 1 (Hart Publishing 2021)
* M Lupoi, Trusts: A Comparative Study (CUP 2000)
* LD Smith (ed), The Worlds of the Trust (CUP 2013)
Additional Information
Graduate Attributes and Skills Students will develop the skills of working both independently and in groups in the critical analysis of legal and source materials across different jurisdictions in the field of trusts. They will gain experience in the functional analysis of trusts and the difficulties such an analysis poses. They will develop sensitivity to the nuances of language and terminology. By interactive discussion, they will learn the value of shared dialogue to the formation and refinement of their thinking.
KeywordsTrusts,Foundation,Treuhand,Fiducie,Fideicomiso,Legal Transplants,Patrimony,Hague Trusts Convention
Course organiserProf Alexandra Braun
Tel: (0131 6)51 5560
Course secretaryMiss Bethan Walters
Tel: (0131 6)50 2386
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