Abstract:

The institution of trust that is inherent in common law includes a tripartite relationship and is established by the unilateral act of the settlor, called the trust deed. Pursuant to this relationship, the settlor transfers the ownership of a certain asset (trust corpus) to the trustee, and it is aimed that the trustee manages this asset for the benefit of the third party. This third party, defined as the beneficiary, will benefit from the use of the asset by the trustee. The trust institution’s characteristics of both the trustee and the beneficiary having the right of ownership over the trust corpus, and the trust property which the settlor legally owns, being segregated from the settlor’s personal assets are functional to trust institution and aim to protect the beneficiary. But these characteristics are contrary to the principles existing in the civil law. This situation causes drawbacks for trusts to be adopted into the civil law. However, this institution has similar appearances in the civil law: Treuhand in German law, fiducie in French law. In Turkish law, power of attorney, foundation, obligatory donation, usufruct right, fiduciary transaction, funds regulated in the Capital Markets Law and executed on the basis of pure fiduciary transaction, mandate, contract for the benefit of a third party are similar to the trust institution. Amidst globalization, the institution of trust has ceased to be a problem only for the common law. If a dispute regarding this institution, which is foreign to the Turkish legal system, comes before the Turkish judge, the problem of resolving a dispute regarding this institution in terms of private international law will arise. Although there is a Hague Trust Convention on Law Applicable to Trusts and on their Recognition, Turkey is not a party of this Convention, thus, this problem continues to be valid for Turkey.

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