Monday, March 8, 2021
Surutchada Reekie and Adam Reekie recently published an article entitled, The Surviving Legacy of English Trust Law and Trusts in Thailand, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article.
In Thailand, the establishment of trusts outside a statutory regime is effectively prohibited by section 1686 of the Civil and Commercial Code. The provision stipulates that trusts created expressly or impliedly, by wills or other means, to take effect during the lifetime of the creator or after his death, shall have no legal effect. The only exception to this is trusts created by a specific statute, which to date only applies to investment trusts under the Trusts for Transactions in the Capital Market Act of 2007.
However, virtually unexplored in depth in academic literature is the existence of “common law” trusts in Thailand. These trusts were initially set up by foreign, and then by local, settlors in accordance with English trust law, by virtue of consular jurisdiction during the time of extraterritoriality in Siam in the late 19th century. This chapter has identified and analysed 47 Supreme Court cases dated from 1920 to 2012 which involve issues relating to common law trusts. The discussion demonstrates that these trusts survived the coming into force of section 1686 and many are still valid and enforced by Thai courts. Moreover, in adjudicating these disputes, the Supreme Court has applied a combination of English trust law principles and Thai legal principles in a way that does not simply reflect a direct legal transplant of English legal principles. Instead, they constitute a unique body of judicially developed trust jurisprudence that is similar to, yet distinct from, English trust law.
Thailand’s common law trusts provide a fascinating case study of a transfer of legal ideas which was arguably incidental in its inception, yet which transformed into a unique body of legal rules that operates beyond the realm of the country’s major legal code and statutes.