Expert Insight into...Trusts
Natacha Onawelho-Loren worked as a UK private client tax solicitor for a number of years in the City of London before becoming in-house counsel at the Geneva subsidiary of an international trust group. This month she discusses with Lawyer Monthly all about trusts and matters business start-ups should consider. After joining Investec Trust (Switzerland) SA in 2007 as Legal Adviser, she was appointed Legal Director for the Trust group in 2011, and thus she has a vast amount of knowledge on “how to be a good trustee”.
You provide advice on all aspects of trust & fiduciary matters – what are common aspects and regulations that non-experts are often unaware about?
The most common aspect that people are unaware of, or tend to forget, is that trusts are relationships and not entities (except for Foreign Account Tax Compliance Act (FATCA) and Automatic Exchange of Information (AEOI)/ Common Reporting Standard (CRS) purposes). To establish a trust does not require registration anywhere; there is no such thing, for example, a certificate of good standing for trusts (which is a request we received no later than last week!). This relationship between the trustee and trust's beneficiaries is regulated by law and the terms of the trust deed with the trustee being held to very high standard.
As a lecturer on trusts, what do you think is most important to advise on?
I lecture for STEP, both in Geneva and Zurich, on "how to be a good trustee". The session focuses on the dos and don'ts of acting as trustee and highlights the various risks inherent to the position. I remind trustees (externally and internally) of the high level of care they need to display at all times, as anything they do may, and will one day, be scrutinised. The session also serves as a reminder that ultimately it is the trustee who will be called to account for any potential wrongdoings or mismanagement of the trust's assets. Therefore, the trustee should take all the decisions based on sound information and avoid being directed by the settlor. The duty and level of care is high. Being a trustee can be very rewarding but is not without risks.
Moreover, do you think your advice will change due to Brexit, when regarding trusts to the intermediary market in London?
It is a bit early to feel the effect of Brexit on the London intermediary market. London is a sophisticated international financial and wealth structuring centre and as such will continue to attract wealthy families. Its property market remains an attractive asset class for many internationals subject to geopolitical instability. Going forward however, Geneva and Zurich will probably grow more in importance, owing principally to Switzerland's political, tax and financial stability and its educated workforce.
What advice would you offer start-up businesses when regarding fiduciary trusts?
Scope your risks and understand your fiduciary responsibilities. The trustee carries the legal and fiduciary risks of any act he undertakes and this towards 3rd parties and the trust's beneficiaries. It is therefore important to have a precise understanding of what the role entails and what standard is expected, in particular in relation to the administration of the trust's assets. Holding a bank's portfolio requires a different skill set, team organisation, intermediary network and monitoring tools than, for example, operating a mine in Kazakhstan.
You are based in London, Geneva, Jersey and Mauritius; which place do you think is the most advanced when regarding business law?
For trust law, Jersey and the UK are the most advanced, although UK matrimonial courts have had a tendency to look through trusts in the last couple of years.
Moreover, do you think each city could benefit from adopting certain regulations from other cities?
At Accuro, we welcome the new legislation to come into force in Switzerland in January 2018, on the regulation of trustees and trustees' activities (LeFIN). This will put the Swiss trust industry on a par with other established trust's jurisdictions and will increase the attractiveness of Switzerland as a centre of trust's administration with strong reputable players.
Are there any changes in regulations to which you have an eye on?
The group is currently finalising the reporting for AEOI (early adopters jurisdictions). FATCA, dare I say it, has become almost routine. We are getting to grips with the legal entity identifier (LEI) legislation which was introduced into Swiss law under the Financial Market Infrastructure Act (the "Act"). The Act requires us to register certain of our trusts and companies where they hold derivatives. Last month, the UK enacted a new legislation in the form of regulations ("the Money Laundering, Terrorist Financing and Transfer of funds Regulations 2917 "MLR2017") whereby trustees, whether they be UK or foreign, will have to register and report on their trusts to the UK authorities where there is an exposure to UK tax.
Published by Lawyer Monthly (July Issue-page 84)