Brunei: Law of Offshore
Brunei has very comprehensive international trust legislation, which will appeal both to private clients as well as major corporations. For the private clients, provision is made for asset protection trusts as well as special trust regimes. Under this regime, it is not the beneficiary who enforces a trust but an independent Enforcer. This addresses certain tax and security issues.
For the major corporations, commercial purpose trusts may be created whereby it is not necessary to have an individual beneficiary. Such trusts are widely used for special purpose vehicles (SPV) and planning, varying from project finance to securitization and segregation. The legislation also provides a more modern definition of inquired charities. This enables charitable trusts to be established to protect the environment and historic buildings, for example.
Under the International Trust Order, 2000 ('ITO'), an IT must be in writing, settled by a non-resident of Brunei, declared in its terms to be an international trusts (on creation or migration to Brunei), and at least one trustee must be a licensed under RATLO or an authorised wholly-owned subsidiary of a licensee. Generally, only non-residents may be beneficiaries when an IT is first established. Purpose and Special trusts are provided for, whether charitable or non-charitable.
At least one trustee must be licensed under The Registered Agents and Trustees Licensing Order, 2000 (RATLO) or an authorised wholly-owned subsidiary of a licensee. Generally, only non-residents may be beneficiaries when an IT is first established. The retention of certain powers (specified in the ITO) by the settlor will not invalidate an IT. Such powers are not, however, deemed to exist in the absence of specific provision in the Trust instrument.
There are wide powers of investment, with an ability for trustees to seek "proper advice" as defined. Having done so, a trustee will not be liable for acts taken pursuant to such advice.
There are powers to appoint agents and to delegate. Trustees may charge, and similar provisions appear for enforcers and protectors. Powers of maintenance and advancement are wide, spendthrift and protective trusts are recognized.
Arrangements for appointment or change of trustees follow generally accepted lines. The Court is given wide powers to interpret, assist and amend. Hearings may be held in camera. Trustees may pay funds into Court for determination of matters arising in the course of administering the fund, and there is power to apply to the Court for an opinion, advice or a direction relating to trust assets.
Purpose Trusts are provided for, whether charitable or non-charitable. Without prejudice to the generality, a trust for the purpose of holding securities or other assets is by statute deemed a purpose trust. The purposes must be reasonable, practicable, not immoral nor contrary to public policy. The trust instrument must state that the trust is to be an authorized purpose trust at creation or on migration to Brunei. Provision must be made for the disposal of surplus assets (although no perpetuity period applies), and an enforcer is required. On completion or impossibility of achieving purposes, further trusts may be activated.
In Part IX of the ITO, a power is said to be held on trust if granted or reserved subject to any duty to exercise the power. A trust or power is subject to Part IX and is described as a special trust, if at the creation of the trust or when it first becomes subject to the law of Brunei Darussalam the settlor is non-resident and the trust instrument provides that that the trust is to be a special trust. The objects of a special trust or power may be persons or purposes or both, the person may be of any number, and the purposes may be of any number or kind, charitable or non-charitable.
The hallmark of a special trust is that a beneficiary does not, as such, have standing to enforce the trust or any enforceable right to the trust property. The only persons who have standing to enforce a special trust are such persons as are appointed to be its enforcers:
- by the trust instrument; or
- under the provisions of the trust instrument; or
- by the Court.
An enforcer of a special trust has a duty to act responsibly with a view to enforcing the proper execution of the trust, and to consider responsibly at appropriate intervals whether and how to exercise his power and then to act accordingly. A trustee or another enforcer, or any person expressly authorized by the trust instrument, has standing to bring an action against an enforcer to compel him to perform his duties. An enforcer is entitled to necessary rights of access to documents and records. Generally a special trust is not void for uncertainty, and its terms may give to the trustee or any other person power to resolve any uncertainty as to its objects or mode of execution.
If such an uncertainty cannot be resolved as aforesaid, the Court may act to resolve the uncertainty, and insofar as the objects of the trust are uncertain and the general intent of the trust cannot be found from the admissible evidence as a manner of probability, may declare the trust void. If the execution of a special trust is or becomes in whole or in part:
- impossible or impracticable; or
- unlawful or contrary to publish policy; or
- obsolete in that, by reason of changed circumstances it fails to achieve the general intent of the special trust, the trustee must, unless the trust is reformed pursuant to it own terms, apply to the Court to reform the trust.
As regards charitable trusts, the law has been modified to include, for example, benefits to the environment, fauna and flora, historic sites and similar objects which hitherto have fallen short of the legal definition of charity.