Introduction
Scope of the bill
Comment

Introduction

In November 2021, the government of the Macau Special Administrative Region (SARM) delivered its 2022 policy address to the public. The development of the modern financial sector and the strengthening of the financial infrastructure are among the main priorities of the government to achieve the long-awaited economic diversification.

Financial sector development will include:

  • bond issue;
  • wealth management;
  • green finance;
  • financial leasing;
  • a financial infrastructure data center; and
  • a faster payment system.

Legislation and directives concerning the financial sector are the main aspects on which the government will focus its actions in 2022.

As part of this effort, a Trusts Bill was introduced in the Macau Legislative Assembly on November 25, 2021 and assigned to the Second Standing Committee for consideration. The introduction of the project indicates that it is seen as a measure to promote and develop activities related to wealth management and to improve legislation and guidelines concerning the financial sector.

Scope of the bill

The project aims to promote the development of trust activities by establishing a legal framework for trusts and regulating in particular:

  • the establishment and termination of trusts;
  • property in trust; and
  • the quality, rights and duties of trustees, trustees and beneficiaries.

The project is divided into eight chapters and consists of 38 articles. It defines a “trust” as a legal relationship in which a trustee transfers his rights of ownership to the trustee, so that the trustee, in his own name, manages or disposes of trust property for the benefit of the beneficiary or in a specific goal. .

In addition, the draft provides that a contractual trust may, in general, be created by means of a private deed, unless the property or rights to be included require otherwise. Also, if a contractual trust were to be filed with the official registers, failure to make such a filing would render it unenforceable against third parties.

Regarding the necessary elements of the trust deed, they must include:

  • the purpose of the trust;
  • the list of assets and rights to be included in the fiduciary patrimony and their identification or the procedure for their identification;
  • the identity of the trustee(s);
  • the identity of the trustee(s);
  • the powers attributed to the fiduciary(ies), and in particular the powers of alienation and possible acquisition;
  • the identity of the beneficiary or beneficiaries or the methods of their identification; and
  • the content of the right of the beneficiary or beneficiaries to the trust (beneficio fudicario).

Given the specificity of fiduciary activities, the fiduciaries who exercise them are responsible for:

  • care;
  • loyalty;
  • impartiality;
  • maintaining and updating records;
  • property separation;
  • secret; and
  • information.

Trustees must belong to one of the following types of entities:

  • a credit institution (decree-law no. 32/93/M of July 5);
  • a financial company (decree-law no. 15/83/M of February 26);
  • an asset management company (Decree-Law No. 25/99/M of June 28);
  • an investment fund management company (decree-law no. 83/99/M of 22 November);
  • an insurance company (Decree-Law No. 27/97/M of June 30);
  • a pension fund management company (decree-law no. 6/99/M of February 8); Where
  • an entity authorized to carry out fiduciary activities in accordance with special legislation.

In accordance with the trust deed, the beneficiary:

  • owns the right to the trust properties;
  • may request the trustee to return the property to the trust; and
  • may request information from the trustee on the management of the trust.

Further, if trust property is wrongfully transferred – that is, when such transfer is made in violation of the purpose of the trust or the stipulations of its constitution – the trustee, the beneficiary or another fiduciary (if applicable) may request the cancellation of such transfer.

Finally, the draft under discussion establishes terms for the termination of trusts. In particular, it is specified that testamentary trusts must follow the relevant rules of the Civil Code of Macau on wills.

Comment

Trusts have their roots in common law jurisdictions and, under private international law, civil law jurisdictions often have difficulty recognizing trusts in their original form – i.e. the Anglo-American concept. of trust. Legislating such institutions in Macau is a great step forward, especially when trying to articulate them within the traditional property rights principles of civil law jurisdictions. MRAS is not alone in this regard, and many experiences from other civil law jurisdictions, such as China, Japan, South Korea and Taiwan, can be considered valuable to the project’s current legislative process. of law.

Macau’s financial law landscape is expected to be renovated in the coming years. As indicated in the consultation document of the second five-year plan for economic and social development (2021-2025), which aims to revise the laws and regulations relating to the financial sector, Decree Law No. 32/93/M (the Macao Law Financial System), Decree-Law No. 7/95/M (Macau Currency Issuance Law) and Decree-Law No. 83/99/M (Establishment and Operation of Investment Funds and Companies management of investment funds), among others, are the laws likely to be amended or modified. It is also expected that another major piece of legislation for the financial sector could begin its journey shortly.

For more information on this subject, please contact Calvin Tinlop Chui at Rato, Ling, Lei & Cortés Advogados by phone (+853 2856 2322) or email ([email protected]). The Rato, Ling, Lei & Cortés Advogados website can be accessed at www.lektou.com.

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