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15 - The Alternative Australian Trusts Act (Cth)

from Part III

Published online by Cambridge University Press:  19 April 2018

Richard C. Nolan
Affiliation:
University of York
Kelvin F. K. Low
Affiliation:
City University of Hong Kong
Tang Hang Wu
Affiliation:
Singapore Management University
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Summary

This paper makes the case for modernisation and codification of Australian trust law through the enactment of a federal Alternative Australian Trusts Act (AATA), to operate alongside the common law and state-based regimes as a choice of law for future trust users. The AATA concept is developed against the backdrop of a comparative analysis of current Australian trust law and the recent trust law reforms of two of Australia’s Asia Pacific neighbours, namely Singapore and Hong Kong. It is argued that an alternative, codified trust law will provide certainty and efficiency, a proper distribution of risk among trust users and stakeholders, and a more robust consumer protection regime. The alternative law will provide settlors of personal trusts, investors in collective schemes and loan capital trust lenders with a choice of substantive trust law. It will include fit for purpose provisions that are appealing to both domestic and non-resident trust users. Because the AATA will target both foreign trust users as well as domestic users, it will promote the export of Australia’s deep and substantial wealth management and private banking industry, which in turn will bolster Australia’s standing as a financial centre in the Asia Pacific region.
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Publisher: Cambridge University Press
Print publication year: 2018

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