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Trust and Fiducia

TRUST AND FIDUCIA

1. THE CENTRAL THESIS

2. THE FIDUCIARY SCOPE IN LATIN AMERICA

3. THE PRODUCS OR KIND OF CONTRACTS

4. CONCLUSIONS

1. THE CENTRAL THESIS

• Colombian definition:

Commercial “fiducia” is a juridical deal by which a person, called “fiduciante” or “fideicomitente”,(settlor) transfers one or more specified goods to another one, called “fiduciario”, (trustee) who’s obliged to administrate or sell them in order to meet the objective established by the ”constituyente” , (settlor) in benefit of the latter or the one of a third party called the beneficiary or “fideicomisario”. (Commercial Code, art.

• It doesn’t exist a real limitation. The definition has given us space to say that the only limit is the imagination

1.2 The fiducia or fideicomiso has the same structure and permits to obtain similar results as the trust We have certain differences, for example, the tendency to the professionalization of the fiduciario (a banker or a financial institution), and the only type of trust allowed is the “express”.

1. THE CENTRAL THESIS

• But there are similarities in everything that is essential like

the:

(i) Creation of an independent or autonomous patrimony

(ii) Recognition of a fiduciary (trustee) acting on behalf of that

patrimony in whose name those goods are registered, and

(iii) A teleological structure for the accomplishment of the

objective established by the settlor (constituyente or

fideicomitente)

2. THE FIDUCIARY SCOPE IN LATIN AMERICA

• We have the laws, the doctrine and the

jurisprudence, trough a great number of judgments into the ordinary and arbitral jurisdiction, and an important number of products for businessmen and consumers that gives us a strong experience that can be shared with other countries.

2. THE FIDUCIARY SCOPE IN LATIN AMERICA

• The following table shows the dates of introduction of fiduciary laws in our countries compared with the other civil law countries

(1) Jurisprudence (2) Hague Convention (3) Law

LATIN AMERICA EUROPE AND CANADA Panama ( 1925) Germany (Treunhand - 19th century) (1) Mexico (1927) Switzerland (1905) (1) Puerto Rico (1928) Liechtenstein (1926) Venezuela ( 1956) Holland (1929) (1) Costa Rica (1964) Monaco (1935) Brasil (1965) (1997) Italy (1942) (1) Guatemala (1970) El Salvador ( 1970) Colombia (1971) República Dominicana (1971) (2002) Bolivia (1977) The Hague (1985) (2) Peru ( 1993) Luxemburg (1983) (3) 2003 (3) Ecuador ( 1993) Malta (1988) (3) Argentina ( 1994) Italy (1992) (2) Honduras (1995) Quebec- Canada (1994) (3) Paraguay (1996 ) Holland (1996) (2) Cuba (1997) Switzerland (2006) (2) Uruguay (2003) France (2007) (3)

3. THE PRODUCTS OR KIND OF CONTRACTS

• 3.1 The combination between any goods and any legitimate proposal allows to build almost an unlimited number of fiduciary contracts.
• 3.2 The most important and known products or contracts are:

a) Management fiduciary agreement b) Security or guarantee fiduciary agreement c) Fiduciary agreement for real estate sector d) Investment fiduciary agreement including Investment funds e) Capital markets agreements, including securitization

4. CONCLUSIONS

• 4.1 The fiducia is a well done equivalent of the trust for the civil law countries. In spite of the differences, most of which are the result of a historical development that we can't reproduce, we have established in the fiducia the most essential characteristics of the trust express model. 4.2 The fiducia is the result of our own reality and has received an important influence of the anglo-saxon institutions. But the rights in rem must be recognized by the law_._ It is impossible to define it by the settlor or by an agreement. Nevertheless, our definitions are also flexible and give us the opportunity to apply the fiducia to an enormous class of agreements. 4.3 The large application of the fiducia in Latin America, with laws, doctrine and jurisprudence, give us the possibility to share our strong experience with the continental European countries. 4.4 For these reasons I consider that trust and fiducia can coexist peacefully.