The Crown dependencies of the Bailiwick of Jersey and the Bailiwick of Guernsey (hereinafter “the Channel Islands”) were part of Normandy in 1066 when its ruler, William the Conqueror, invaded England and seized the English crown. Today, these two remnants of the Duchy of Normandy are not a part of the United Kingdom. (The UK, however, has assumed responsibility for their defense.) In 1204 mainland Normandy was taken from the English by the King of France. This ended 293 years of relative Norman independence from the French crown.

If one is to get a handle on why the Channel Islands acquired their trust regimes via legislation and osmosis (by osmosis I mean indirectly through long association with England and the English), rather than directly via England’s courts of equity, one needs to appreciate that the institution of the trust as we know it evolved after the Norman Conquest in England but not in Normandy, an event that had set in motion an amalgamation in the former of two cultures, the Anglo-Saxon and the Norman-French. The institution of the trust is a juridical spin-off from that amalgamation. To this day France lacks a comparable equity-based trust jurisprudence. French jurists have perceived the English trust’s divided-ownership feature as violating the civil law’s Numerus Clausus principle, a topic we take up in §8.15.95 of Loring and Rounds: A Trustee’s Handbook (2022), which section is reproduced in Appendix A below. Moreover, the visceral hesitancy of the French to embrace the English trust is said to have its roots in the French Revolution, divided property rights being perceived as a vestige of the feudal. France has yet to ratify the Hague Convention on the Law Applicable to Trusts and on Their Recognition. By contrast, as far back as 1928, Liechtenstein by statute injected the Massachusetts business trust, lock, stock, and barrel directly into its civil-law jurisprudence.

To be sure civil-law jurisdictions on the Continent have their trust analogs, but each tends to have some, but not all, of the functional bells and whistles of the equity-based Anglo-American trust. Take Germany’s home-grown analog the Treuhand. That the Bundestag in the 1950s sent two delegations to the U.S. to investigate how a trusteed mutual fund is structured with an eye to coming up with a civil-law statutory analog of functional equivalence says it all. The Treuhand’s functional limitations are considered in §8.12.1 of Loring and Rounds: A Trustee’s Handbook (2022), the relevant portion of which section is set forth in Appendix B below.

The Handbook is available for purchase at: https://law-store.wolterskluwer.com/s/product/loring-rounds-a-trustees-handbook-2022e-misb/01t4R00000OVWE4QAP.