COMPARATIVE PRIVATE LAW LEGAL TRANSPLANTS University of Oslo

COMPARATIVE PRIVATE LAW LEGAL TRANSPLANTS University of Oslo Prof. Giuditta Cordero Moss

Legal Transplants • Circulation of legal models – Reception of structure and principles of a legal system – ”Borrowing” of ad hoc legal rules

Reasons for legal transplants • Imposition – E. g. : French law - colonies • Prestige – E. g. : German law - pandectists • Efficiency – E. g: English law – financial transactions • Chance – E. g. : Russian transition

Legal transplants and legal families • Cross-family transplants • Possible: – Legal families are classification of legal models, not legal models themselves • Difficult: – Legal families present structures and principles that may not be compatible with rules generated under different structures

Multiple models • Russian company law before JSC Act 1995: – Gov. Decree 601/90: JSC – US model – Enterprises Act 90: LLC – German model

Multiple models – criticism • Transplant from common law into a civil law system • Coexistence of models from two different legal families • Classification describes to reality, not reality adapts to classification • Main consequences : richness of system

Incompatible models • Decree 2296/93: • Transplant of trust into Russian system

Incompatible models? • Trust – common law: – Dual property: formal ownership, beneficial interest – Injunction to use property in best interests of beneficiary – Tracing with third parties – Protection against trustee’s creditors • Ownership – civil law: – Unitary property – Fiduciary obligations – Only contractual liability

Transplant of different models • Trust transplanted into various civil law systems: Louisiana, Quebec, Scotland, Japan, Liechtenstein, … • Why is it incompatible with the Russian system?

Transplant of trust into Russia • Context: improvement of industry prior to privatisation. – Shares transferred to banks against loan, banks manage companies, on maturity loan repaid or bank remains owner of company • Art. 1: ”The institution of trust is transplanted into the civil law of the Russian Federation” • Art. 13: Trustee responds of proper performance with all its assets

Comparison of models • Common law trust: – Transfer of formal ownership, creation of beneficial interest – Injunction – Tracing – Separation from trustee’s assets • Decree 2296 trust: – Transfer of total ownership – Contractual liability of trustee in case of breach of fiduciary obligations

Incompatible models - conclusion • Trust may be transplanted from common law to civil law • Transplant of trust by Decree 2996 not successful • Decree 2996 failed to see function, legal effects and remedies in the original system and differences in the own system • Decree 2996 transplanted terminology, but not legal effects