Мы не можем подтвердить или удостоверить правильность или соответствие текста данного документа. Всякий, использующий данный документ, делает это на свой риск и должен самостоятельно проверить правильность информации.
We cannot attest or verify the correctness or adequacy of the text of the document. Somebody using the document is doing so at his own risk and should independently verify the accuracy of the information.
CONTENTS
Part 1: GENERAl
1. Name
2. Commencement
3. Legislative authority
4. Application of these Regulations
5. Interpretation
6. Default and mandatory rules
7. Common Law and Principles of Equity
Part 2: CHOICE OF GOVERNING LAW; PLACE OF ADMINISTRATION
8. Governing Law
9. Provision for change of Governing Law
10. Matters determined by Governing Law
11. Limitations in Foreign Law
12. Heirship Rights
13. Foreign Judgments
14. Place of Administration
Part 3: JUDICIAL AND NON JUDICIAL PROCEEDINGS
15. Role of the Court in administration of Trust
16. Jurisdiction of the Court
17. Application to and certain powers of the Court
18. Payment of costs
19. Sections 20 to 25: Interpretation
20. Application of powers under sections 21 to 25
21. Power to set aside a transfer or disposition of Property to a Trust due to mistake
22. Power to set aside a transfer or disposition of Property to a Trust exercised by fiduciary power
23. Power to set aside the exercise of powers in relation to a Trust or Trust Property due to mistake
24. Power to set aside the exercise of fiduciary powers in relation to a Trust or Trust Property
25. Applications and orders under sections 21 to 24
26. Savings in respect of applications made under sections 21 to 24
27. Sections 28, 29 and Schedule 2: Interpretation
28. Arbitration of Trust disputes
29. Powers of the arbitral tribunal
Part 4: CREATION, VALIDITY AND MODIFICATION OF AN AIFC TRUST
30. Creation of a Trust
31. Requirements for creation
32. Trust purposes
33. Duration of a Trust
34. Validity and invalidity of a Trust
35. Charitable Trusts
36. Non-Charitable Trusts or Purpose Trusts
37. Variation and revocation of a Trust
38. Power of Court to authorise dealings with Trust Property
39. Failure or lapse of interest
40. Termination of a Trust
41. Distribution of Property
Part 5: THE BENEFICIARIES OF AN AIFC TRUST
42. Beneficiaries of a Trust
43. Disclaimer
44. Interest of Beneficiary and dealings thereof
45. Termination of interest of Beneficiary upon Trust being challenged
Part 6: PROTECTIVE TRUSTS AND CREDITORS’ CLAIMS
46. Protective Trusts
47. Creditors claims in relation to a Discretionary Trust
Part 7: OFFICE OF TRUSTEE
48. Accepting or declining trusteeship
49. Vacancy in trusteeship; appointment of a new Trustee
50. Resignation of Trustee
51. Removal of Trustee by Court or under the terms of a Trust
52. Position of outgoing Trustee
53. Remuneration of a Trustee
54. Advisory Trustees
Part 8: DUTIES AND POWERS OF TRUSTEES
Chapter 1 – DUTIES OF TRUSTEES
55. Duty to administer a Trust
56. Duties of Trustees
57. Duties of co-Trustees to act together
58. Impartiality of a Trustee
59. Cost of administration
60. Enforcement and defence of claims
61. Collecting Trust Property
62. Duty to inform and report
Chapter 2 – GENERAL POWERS OF TRUSTEES
63. Powers of Trustees
64. Specific powers of Trustees
65. Power of accumulation and advancement
66. Corporate Trustee may act by resolution
67. Combination and division of Trusts
Part 9: LIABILITY OF TRUSTEES AND RIGHTS OF PERSONS DEALING WITH A TRUSTEE
68. Liability for Breach of Trust
69. Remedies for Breach of Trust
70. Damages in absence of a breach
71. Legal fees and costs
72. Limitation of action against Trustee
73. Reliance on Trust Instrument
74. Exculpation or insurance of Trustee
75. Beneficiary’s consent, release or ratification
76. Limitation on personal liability of Trustee
77. Protection of persons dealing with Trustees
78. Trustees of more than one Trust
Part 10: AGENTS, NOMINEES AND CUSTODIANS
79. Application of this Part
80. Power to appoint agents
81. Persons who may act as agents
82. Linked functions, etc
83. Terms of agency
84. Asset management — special restrictions
85. Power to appoint nominees
86. Power to appoint custodians
87. Investment in bearer securities
88. Persons who may be appointed as nominees or custodians
89. Terms of appointment of nominees and custodians
90. Application of sections 91 and 92
91. Review of agents, nominees and custodians, etc
92. Liability for agents, nominees and custodians, etc
93. Effect of Trustees exceeding their powers
94. Remuneration and expenses of agents, nominees and custodians
Part 11: RESERVED AND RESTRICTED POWERS, EXPRESSIONS OF WISHES, AND INCAPACITATION
95. Reserved and restricted powers
96. Expressions of wishes
97. Incapacitation of Protector or Settlor
Part 12: PROVISIONS APPLICABLE TO A FOREIGN TRUST
98. Enforceability of a Foreign Trust
Schedule 1 - Interpretation
Schedule 2 - Application of the Arbitration Regulations
Part 1: GENERAl
1. Name
These Regulations are the AIFC Trust Regulations 2019.
2. Commencement
These Regulations commence on 7 August 2019.
3. Legislative authority
These Regulations are adopted by the Governor under paragraph 1 of article 3 and article 4 of the Constitutional Statute and subparagraph 3-1 of paragraph 9 of the Management Council Resolution on AIFC Bodies.
4. Application of these Regulations
(1) These Regulations apply within the jurisdiction of the AIFC.
(2) These Regulations apply to all AIFC Trusts, other than Trusts to which the Collective Investment Scheme Rules apply, and to Foreign Trusts in respect of all acts, omissions or transactions occurring in the AIFC, whenever the Trust was created.
5. Interpretation
Schedule 1 contains:
(a) interpretative provisions which apply to these Regulations; and
(b) a list of defined terms used in these Regulations.
6. Default and mandatory rules
(1) Except as otherwise provided in the terms of an AIFC Trust, these Regulations govern the duties and powers of the Trustee, relations among Trustees and the rights and interests of a Beneficiary.
(2) The terms of an AIFC Trust prevail over any provision of these Regulations, except:
(a) the requirements for creating a Trust;
(b) the duty of a Trustee to act in good faith and in accordance with the purposes of the Trust;
(c) the requirement that a Trust and its terms be for the benefit of its Beneficiaries, and that the Trust have a purpose that is lawful, not contrary to public policy in the AIFC, and possible to achieve;
(d) the power of the Court to modify or terminate a Trust in accordance with these Regulations;
(e) the effect of a Protective Trust as provided in Part 6;
(f) the power of the Court under section 53 (Remuneration of a Trustee) to adjust a Trustee’s compensation specified in the terms of the Trust which is unreasonably low or high;
(g) the effect of an exculpatory term under section 74 (Exculpation or insurance of Trustee);
(h) the rights under section 77 (Protection of persons dealing with Trustees) of a person other than a Trustee or Beneficiary;
(і) periods of limitation for commencing a judicial proceeding;
(j) the power of the Court to take such action and exercise such jurisdiction as may be necessary in the interests of justice; and
(k) the jurisdiction and powers of the Court under sections 16 (Jurisdiction of the Court) and 17 (Application to and certain powers of the Court).
7. Common Law and Principles of Equity
(1) The common law of Trusts and principles of equity applicable in England and Wales supplement these Regulations, except to the extent modified by these Regulations or any other AIFC Act or by the Court.
(2) The statute law of England and Wales applicable to Trusts does not, except to the extent it is replicated in these Regulations, apply in the AIFC.
Part 2: CHOICE OF GOVERNING LAW; PLACE OF ADMINISTRATION
8. Governing Law
(1) The meaning and effect of the terms of a Trust are:
(a) determined by the law of the jurisdiction expressed by the terms of the Trust as the Governing Law; failing that
(b) to be implied from the terms of the Trust; or failing either
(c) to be determined by the law with which the Trust at the time it was created had the closest connection.
(2) The references in subsection 8(1)(a) and (b) to “failing that” or “failing either” include references to cases:
(a) where no law is expressed or implied under subsection 8(1)(a) or (b); and
(b) where a law is so expressed or implied, but that law does not provide for Trusts or the category of Trusts concerned.
(3) In ascertaining, for the purpose of subsection 8(1)(c), the law with which a Trust had the closest connection, reference shall be made in particular to:
(a) the place of administration of the Trust designated by the Settlor;
(b) the situs of the assets of the Trust;
(c) the place of residence or business of the Trustee; and
(d) the objects of the Trust and the places where they are to be fulfilled.
(4) A Settlor may, whether or not it is an AIFC Participant, expressly declare in the Trust Instrument that the laws of the AIFC shall be the Governing Law of the Trust.
(5) A term of the Trust expressly declaring that the laws of the AIFC shall govern the Trust is valid, effective and conclusive regardless of any other circumstance.
9. Provision for change of Governing Law
(1) Where a term of a Trust so provides, the Governing Law may be changed to or from the laws of the AIFC, in the manner prescribed by the terms of the Trust, if:
(a) in the case of a change to the laws of the AIFC by a Foreign Trust, such change is recognised by the Governing Law previously in effect; or
(b) in the case of a change from the laws of the AIFC, the new Governing Law would recognise the validity of the Trust and either all the Trusts, powers and provisions of the Trust remain enforceable, capable of being exercised and so taking effect or, prior to the change, the Trustee obtains the approval of the Court to the change.
(2) Where the Governing Law of the Trust changes to the laws of the AIFC, that Trust shall be for all purposes an AIFC Trust.
(3) A change in the Governing Law shall not affect the legality or validity of, or render any person liable for, anything done before the change.
(4) If a Foreign Trust becomes a AIFC Trust, notwithstanding subsection 6(2) (Default and mandatory rules) the Trustee may:
(a) Exercise any power conferred upon the Trustee to postpone the date of termination of the Trust without reference to any limitations expressed upon that power by reference to a perpetuity period of any other jurisdiction; and
(b) If no power is conferred upon the Trustee to postpone the date of termination of the Trust, apply to the Court for an order conferring such power which application the Court may grant absolutely or subject to such conditions as to the Court seem fit.
10. Matters determined by Governing Law
(1) Subject to subsection 10(2), all matters arising in regard to a AIFC Trust or in regard to any disposition of Property held upon the Trust thereof including questions as to:
(a) the capacity of any Settlor;
(b) any aspect of the validity of the Trust or disposition or the interpretation or effect thereof;
(c) the administration of the Trust, whether the administration be conducted in the AIFC or elsewhere, including questions as to the powers, obligations, liabilities and rights of Trustees and their appointment and removal; or
(d) the existence and extent of powers, conferred or retained, including powers of variation or revocation of the Trust and powers of appointment, and the validity of any exercise thereof,
shall be determined in accordance with these Regulations and the other laws of the AIFC without reference to the laws of any other jurisdiction with which the Trust or disposition may be connected.
(2) Subject to sections 11 (Limitations in Foreign Law), 12 (Heirship Rights) and 13 (Foreign Judgments), subsection 10(1) shall:
(a) not validate any disposition of Property which is neither owned by the Settlor nor is the subject of a power in that behalf vested in the Settlor;
(b) not validate any Trust or disposition of immovable Property situated in a jurisdiction other than AIFC in which such Trust or disposition is invalid according to the laws of such jurisdiction;
(c) not validate any testamentary Trust or disposition which is invalid according to the laws applicable to succession to the testator’s estate;
(d) not affect the recognition of Foreign Laws in determining whether the Settlor is or was the owner of the settled Property or is or was the holder of a power to dispose of such Property;
(e) not affect the recognition of the laws of its place of incorporation in relation to the capacity of a corporation; and
(f) not affect the recognition of Foreign Laws prescribing generally, without reference to the existence or terms of the Trust, the formalities for the disposition of Property.
11. Limitations in Foreign Law
(1) Without limiting the generality of subsection 10(1) (Matters determined by Governing Law), no AIFC Trust and no disposition of Property to be held in Trust that is valid under the laws of the AIFC is void, voidable, liable to be set aside or defective in any manner by reference to a Foreign Law; nor is the capacity of any Settlor in relation to the Trust or disposition to be questioned nor is the Trustee or any Beneficiary or any other person to be subjected to any liability or deprived of any power or right, by reason that:
(a) the laws of any foreign jurisdiction prohibit or do not recognise the concept of a Trust;
(b) the Trust or disposition voids or defeats any rights, claims or interest conferred by Foreign Law upon any person by reason of a Personal Relationship to the Settlor or any Beneficiary or by way of Heirship Rights or contravenes any rule of Foreign Law or any foreign, judicial or administrative order, arbitration award or action intended to recognise, protect, Enforce or give effect to any such rights, claims or interest; or
(c) the Foreign Law or foreign judicial or administrative order or arbitration award imposes any obligation or liability on the Settlor, Trustee, Enforcer, Protector, Beneficiary or any other party in relation to the Trust or the Trust Property.
(2) Subject to subsection 11(3), a transfer of Property to a Trust shall not be void, voidable or liable to be set aside by reason of a Settlor’s bankruptcy, the liquidation of a Settlor, or any action or claims made against a Settlor by any creditor, notwithstanding any foreign statute providing otherwise.
(3) Notwithstanding subsection 11(2), where the Court determines that, at the time when the Property was transferred to a Trust, a Settlor was insolvent or intended to defraud any creditor of the Settlor it may declare that the transfer of Property was void.
(4) In making claims to set aside transfers of Property to a Trust under subsection 11(3), the burden of proof shall rest with the creditor.
(5) Where a husband and wife transfer Property to a Trust and, immediately before being transferred, such Property or any part or any accumulation thereto is, pursuant to the law of its situs or the law applicable to the property of the parties to the marriage or other recognised personal relationship, determined to be community Property, then, notwithstanding such transfer, that Property and any accumulation thereto shall, for the purpose of giving effect to that law, be deemed to be community Property and be dealt with in a manner consistent with that law but in every other respect shall be dealt with in accordance with the terms of the Trust.
(6) Nothing contained in subsection 11(5) shall be construed so as to cause the Trust or any Trustee to be liable or obliged to pay for any debt or responsibility of the Settlor.
12. Heirship Rights
An Heirship Right conferred by Foreign Law in relation to the Property of a living person shall not be recognised as:
(a) affecting the ownership of immovable Property in the AIFC and movable Property wherever it is situated for the purposes of subsection 10(2)(a) and (b) (Matters determined by Governing Law) or for any other purpose; or
(b) constituting an obligation or liability for any purpose.
13. Foreign Judgments
A foreign judgment shall not be recognised or enforced or give rise to any estoppels insofar as it is inconsistent with sections 11(Limitations in Foreign Law) and 12 (Heirship Rights).
14. Place of Administration
(1) Without precluding other means for establishing a close connection with the designated jurisdiction, terms of a Trust designating the place of administration are valid and conclusive if:
(a) a Trustee’s principal place of business is located in or a Trustee is resident of the designated jurisdiction; or
(b) all or part of the administration occurs in the designated jurisdiction.
(2) A Trustee is under a continuing duty to administer the Trust at a place appropriate to its purposes, its administration, and the interests of the Beneficiaries or in furtherance of its purposes and in accordance with the terms of the Trust.
(3) Without precluding the right of the Court to order, approve, or disapprove a transfer in furtherance of the duty prescribed in subsection 14(2), the Trustee may transfer the Trust’s place of administration to another jurisdiction outside the AIFC.
(4) In connection with a transfer of the Trust’s place of administration, the Trustee may transfer some or all of the Trust Property to a successor Trustee selected in accordance with or designated in the terms of the Trust.
Part 3: JUDICIAL AND NON-JUDICIAL PROCEEDINGS
15. Role of the Court in administration of Trust
(1) The Court may intervene in the administration of a Trust to the extent its jurisdiction is invoked by an interested person or as provided by law.
(2) A Trust is not subject to continuing judicial supervision unless so ordered by the Court.
(3) A judicial proceeding involving a Trust may relate to any matter involving the Trust’s administration, including a request for instructions and an action to declare rights.
16. Jurisdiction of the Court
The Court has jurisdiction where:
(a) the Trust is an AIFC Trust;
(b) a Trustee of a Foreign Trust is an AIFC Participant;
(c) any Trust Property of a Foreign Trust is situated in the AIFC but only in respect of Property so situated; or
(d) administration of any Trust Property of a Foreign Trust is carried out in the AIFC.
17. Application to and certain powers of the Court
(1) A Trustee may make an application to the Court for direction or order concerning the manner in which he may or should act in connection with any matter concerning the Trust and the Court may make such direction or order, if any, as it thinks fit.
(2) The Court may if it thinks fit:
(a) make an order concerning:
(і) the execution or the administration of any Trust;
(ii) the Trustee of any Trust, including an order relating to the exercise of any power, discretion or duty of the Trustee, the appointment or removal of a Trustee, the remuneration of a Trustee, the submission of accounts, the conduct of the Trustee and payments, whether payments into Court or otherwise;
(iii) the vesting of Trust Property;
(iv) a Beneficiary or any person having a connection with the Trust as the Court may determine; or
(v) the appointment or removal of an Enforcer in relation to any non- charitable purposes of the Trust;
(b) make a declaration as to the validity or the enforceability of a Trust;
(c) rescind or vary any order or declaration made under these Regulations, or make any new or further order or declaration; or
(d) rectify the terms on an instrument creating or governing a Trust so that it conforms to the actual intentions of the party or parties to the instrument at the time of its execution as to either:
(і) its legal effect; or
(ii) its intended operation in the circumstances of the case.
(3) The Court may in any proceeding under this Part by order appoint a person to represent the interests of a person who the Court is satisfied is, or may become, a Beneficiary under a Trust, where:
(a) the person is unborn; or
(b) the Court is satisfied that the person is unable to act on his, her or its own behalf;
and may by order remove such person and give directions as to service of such person.
(4) A person so appointed may represent the person whose interests he has been appointed to protect in any dealing with the Trust or in any proceeding under this Part.
(5) Where a representative has been appointed under subsection 17(3), no settlement affecting a person to whom subsection 17(3)(b) applies or the rights of Beneficiaries not yet in existence shall be valid without the approval of the Court.
(6) Subsections 17(4) and 17(5) shall apply irrespective of any provision in the Trust Instrument.
18. Payment of costs
The costs and expenses of and incidental to an application to the Court under these Regulations shall be paid out of the Trust Property or be borne and paid in such other manner or by such other person as the Court may order.
19. Sections 20 to 25: Interpretation
(1) In sections 20 (Application of powers under sections 21 to 25) to 25 (Applications and orders under sections 21 to 24):
(a) references to a transfer or other disposition of Property to a Trust, do not include a testamentary disposition; and
(b) ‘power’ includes a discretion as to the way in which an obligation is performed.
(2) In sections 21 (Power to set aside a transfer or disposition of Property to a Trust due to mistake) and 23 (Power to set aside the exercise of powers in relation to a Trust or Trust Property due to mistake), ‘mistake’ includes (but is not limited to):
(a) a mistake as to:
(і) the effect of,
(ii) any consequences of, or
(iii) any of the advantages to be gained by,
a transfer or other disposition of Property to a Trust, or the exercise of a power over or in relation to a Trust or Trust Property;
(b) a mistake as to a fact existing either before or at the time of, a transfer or other disposition of Property to a Trust, or the exercise of a power over or in relation to a Trust or Trust Property; or
(c) a mistake of law including a law of a foreign jurisdiction.
20. Application of powers under sections 21 to 25
Sections 21 (Power to set aside a transfer or disposition of Property to a Trust due to mistake) to 25 (Applications and orders under sections 21 to 24) apply in relation to the transfer or other disposition of Property to a Trust, or the exercise of any power over or in relation to a Trust or Trust Property that occurs either before or after the coming into force of these Regulations.
21. Power to set aside a transfer or disposition of Property to a Trust due to mistake
(1) In this section, ‘person exercising a power’ means a person who exercises a power to transfer or make other disposition of Property to a Trust on behalf of a Settlor.
(2) The Court may on the application of any person specified in subsection 25(1) (Applications and orders under sections 21 to 24), and in the circumstances set out in subsection 21(3), declare that a transfer or other disposition of Property to a Trust:
(a) by a Settlor acting in person (whether alone or with any other Settlor); or
(b) through a person exercising a power,
is voidable and:
(і) has such effect as the Court may determine; or
(ii) is of no effect from the time of its exercise.
(3) The circumstances are where the Settlor or person exercising a power:
(a) made a mistake in relation to the transfer or other disposition of Property to a Trust;
(b) would not have made that transfer or other disposition but for that mistake; and
(c) the mistake is of so serious a character as to render it just for the Court to make a declaration under this section.
22. Power to set aside a transfer or disposition of Property to a Trust exercised by fiduciary power
(1) In this section, ‘person exercising a power’ means a person who exercises a power to transfer or make other disposition of Property to a Trust on behalf of a Settlor and who owes a fiduciary duty to the Settlor in relation to the exercise of his or her power.
(2) The Court may on the application of any person specified in subsection 25(1) (Applications and orders under sections 21 to 24), and in the circumstances set out in subsection 22(3) (Power to set aside a transfer or disposition of Property to a Trust exercised by fiduciary power), declare that a transfer or other disposition of Property to a Trust by a Settlor (whether alone or with any other Settlor) through a person exercising a power, is voidable and:
(a) has such effect as the Court may determine; or
(b) is of no effect from the time of its exercise.
(3) The circumstances are where, in relation to the exercise of his or her power, the person exercising a power:
(a) failed to take into account any relevant considerations or took into account irrelevant considerations; and
(b) would not have exercised the power, or would not have exercised the power in the way it was so exercised, but for that failure to take into account relevant considerations or that taking into account of irrelevant considerations.
(4) This section applies whether or not the circumstances set out in subsection 22(3) occurred as a result of any lack of care or other fault on the part of the person exercising a power, or on the part of any person giving advice in relation to the exercise of the power.
23. Power to set aside the exercise of powers in relation to a Trust or Trust Property due to mistake
(1) In this section, ‘person exercising a power’ means a person who, otherwise than in the capacity of Trustee, exercises a power over, or in relation to a Trust, or Trust Property.
(2) The Court may on the application of any person specified in subsection 25(2) (Applications and orders under sections 21 to 24), and in the circumstances set out in subsection 23(3), declare that the exercise of a power by a Trustee or a person exercising a power over, or in relation to a Trust, or Trust Property, is voidable and:
(a) has such effect as the Court may determine; or
(b) is of no effect from the time of its exercise.
(3) The circumstances are where the Trustee or person exercising a power:
(a) made a mistake in relation to the exercise of his or her power;
(b) would not have exercised the power, or would not have exercised the power in the way it was so exercised, but for that mistake; and
(c) the mistake is of so serious a character as to render it just for the Court to make a declaration under this section.
24. Power to set aside the exercise of fiduciary powers in relation to a Trust or Trust Property
(1) In this section, ‘person exercising a power’ means a person who, otherwise than in the capacity of Trustee, exercises a power over, or in relation to a Trust, or Trust Property and who owes a fiduciary duty to a Beneficiary in relation to the exercise of that power.
(2) The Court may on the application of any person specified in subsection 25(2) (Applications and orders under sections 21 to 24), and in the circumstances set out in subsection 24(3), declare that the exercise of a power by a Trustee or a person exercising a power over, or in relation to a Trust, or Trust Property, is voidable and:
(a) has such effect as the Court may determine; or
(b) is of no effect from the time of its exercise.
(3) The circumstances are where, in relation to the exercise of his or her power, the Trustee or person exercising a power:
(a) failed to take into account any relevant considerations or took into account irrelevant considerations; and
(b) would not have exercised the power, or would not have exercised the power in the way it was so exercised, but for that failure to take into account relevant considerations, or that taking into account of irrelevant considerations.
(4) This section applies whether or not the circumstances set out in section 24(3) occurred as a result of any lack of care or other fault on the part of the Trustee or person exercising a power, or on the part of any person giving advice in relation to the exercise of the power.
25. Applications and orders under sections 21 to 24
(1) An application under subsection 21(2) (Power to set aside a transfer or disposition of Property to a Trust due to mistake) or 22(2) (Power to set aside a transfer or disposition of Property to a Trust exercised by fiduciary power) may be made by any Settlor or any of his or her personal representatives or successors in title.
(2) An application under subsection 23(2) (Power to set aside the exercise of powers in relation to a Trust or Trust Property due to mistake) or 24(2) (Power to set aside the exercise of fiduciary powers in relation to a Trust or Trust Property) may be made by:
(a) the Trustee who exercised the power concerned, or the person exercising a power (as the case may be);
(b) any other Trustee;
(c) a Beneficiary or Enforcer;
(d) the Settlor, his heirs, or AFSA in relation to a Trust containing Charitable Trusts, powers or provisions; or
(e) any other person with leave of the Court.
(3) Without prejudice to section 17 (Application to and certain powers of the Court) and subject to subsection 25(4), the Court may, consequential upon a declaration made under any of sections 21 (Power to set aside a transfer or disposition of Property to a Trust due to mistake) to 24 (Power to set aside the exercise of fiduciary powers in relation to a Trust or Trust Property), make such order as it thinks fit.
(4) No order may be made under subsection 25(3) which would prejudice any purchaser in good faith for value of any Trust Property without notice of the matters which render the transfer or other disposition of Property to a Trust, or the exercise of any power over or in relation to a Trust or Trust Property, voidable.
26. Savings in respect of applications made under sections 21 to 24
Nothing in sections 21 (Power to set aside a transfer or disposition of Property to a Trust due to mistake) to 24 (Power to set aside the exercise of fiduciary powers in relation to a Trust or Trust Property) shall prejudice:
(a) any application for a declaration that a transfer or other disposition of Property to a Trust, or the exercise of any power over or in relation to a Trust or Trust Property, is void or voidable on grounds other than those specified in sections 21 (Power to set aside a transfer or disposition of Property to a Trust due to mistake) to 24 (Power to set aside the exercise of fiduciary powers in relation to a Trust or Trust Property); or
(b) any personal remedy which may be available against a Trustee or any other person.
27. Sections 28, 29 and Schedule 1: Interpretation
For the purposes of sections 28 (Arbitration of Trust disputes) and 29 (Powers of the arbitral tribunal) and Schedule 1:
"administration question" means any relief or question in respect of which an action, application or other reference to the court could be brought or made under these Regulations;
"Beneficiary" includes an object of a power, whether or not ascertained or in existence and a charity;
"dispute" includes a difference;
"power holder" means any person holding a power in relation to a Trust (including any power of appointment, consent, direction, revocation or variation, and any power to appoint or remove Trustee or power holders) and includes a person in the position of a Protector;
"the parties in relation to the Trust" means any Trustee, Beneficiary or power holder of or under the Trust, in their capacity as such.
28. Arbitration of Trust disputes
(1) Where a Trust Instrument provides that any dispute or administration question arising between any of the parties in relation to the Trust shall be submitted to arbitration ("a Trust arbitration"), that provision shall, for all purposes under the Arbitration Regulations have effect as between those parties as if it were an arbitration agreement and as if those parties were parties to that agreement.
(2) Where a Trust Instrument does not provide that any dispute or administration question arising between any of the parties in relation to the Trust shall be submitted to arbitration but the parties to that dispute agree in writing to have it resolved by a Trust arbitration, that agreement shall, for all purposes under the Arbitration Regulations, have effect as between those parties as if it were an arbitration agreement.
(3) The Arbitration Regulations shall apply to a Trust arbitration in accordance with the provisions of Schedule 1.
(4) The Court may make such orders in relation to an arbitration or possible arbitration which supplement or vary the application of Schedule 1 as may in the opinion of the Court be appropriate in the circumstances of the case.
29. Powers of the arbitral tribunal
(1) This section shall apply except to the extent otherwise provided in the Trust Instrument.
(2) The arbitral tribunal (hereinafter referred to as "the tribunal") may, in addition to all other powers of the tribunal, at any stage in a Trust arbitration, exercise all the powers of the Court (whether arising by law (including these Regulations), under the inherent jurisdiction of the Court or otherwise) in relation to the administration, execution or variation of a Trust or the exercise of any power arising under a Trust.
Part 4: CREATION, VALIDITY AND MODIFICATION OF AN AIFC TRUST
30. Creation of a Trust
(1) A Trust may be created by:
(a) transfer of Property owned by the Settlor to another person as Trustee, and, if the Settlor is a natural person, during the Settlor’s lifetime or by will or other disposition taking effect upon the Settlor’s death;
(b) the transfer of Property from one Trust in order to settle such Property in a new Trust;
(c) declaration by the owner of identifiable Property that thereupon the owner will hold the Property as Trustee; or
(d) exercise of a power of appointment in favour of a Trustee.
(2) A Trust shall come into existence by an instrument in writing including a will or codicil.
31. Requirements for creation
(1) A Trust is created if:
(a) the Settlor has the capacity to create a Trust;
(b) the Settlor indicates an intention to create the Trust;
(c) the Trust either:
(і) has a definite Beneficiary;
(ii) is a Charitable Trust, as provided for in section 35 (Charitable Trusts); or
(iii) is a non-charitable Purpose Trust, as provided for in section 36 (Non-Charitable Trusts or Purpose Trusts);
(d) the Trustee holds or has vested in him or it Property for the benefit of a Beneficiary or for a purpose;
(e) the Trustee has duties to perform; and
(f) the same person is not the sole Trustee and sole Beneficiary.
(2) A Beneficiary is definite if the Beneficiary can be ascertained now or in the future.
(3) A Trust may have at the same time a definite Beneficiary and a purpose.
32. Trust purposes
(1) A Trust may only be created to the extent its purposes are sufficiently certain to allow the Trust to be carried out, lawful and not contrary to public policy in the AIFC.
(2) A Trust and its terms shall be for the benefit of its Beneficiaries or in furtherance and support of its purposes.
33. Duration of a Trust
