The new UAE federal Trust Law – a tale of two parts
Al Tamimi & Company
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On 25/9/2023, H.H. President of the UAE Sheikh Mohammad Bin Zayed Al Nahyan issued Federal Decree-Law No. 31 of 2023 relating to Trust (the “New Trusts Law”). The New Trusts Law repeals the previous Federal Decree by Law No.19 of 2020 governing trusts (the “Old Trusts Law”) and became effective on 30th September 2023.
We have set out below the ‘headline’ points arising under the New Trusts Law and, following on from that, we have identified some more peripheral matters that will also be of interest to clients.
Headline Points under the New Trust Law:
Other points to note in relation to the New Trusts Law:
Discussion points
The New Trusts Law is not a wholesale rewriting of the Old Trusts Law. However, to the credit of the legislators, it has produced a new law relating to trusts which is easier to read and interpret and has removed some of the more spurious provisions relating to trusts which previously existed. It has also sought to tighten up on some of the areas which matter in practical sense in the UAE.
For example, the New Trusts Law has clarified that property which is transferred into a trust is truly separate from the settlor. It ensures that the public records and trust documentation and accounts will remain confidential (particularly from trust beneficiaries and third parties unconnected with the trust) unless the settlor wishes otherwise. Also the provisions preventing the use of certain liability exculpation clauses for trustees is a noteworthy; as the intention is presumably to try and improve the professionalism of trustees in the UAE generally.
On the other hand, there are certain issues under the New Trusts Law which might be considered less welcome. For instance, under the New Trusts Law, trusts are still considered as legal entities in their own right. Trusts are now effectively restricted to express private trusts with identifiable beneficiaries, as the previous provisions expressly permitting charitable trusts and (non-charitable) private purpose trusts have been repealed. Trusts established under the New Trusts Law will now be subject to an even more onerous registration process with local authorities in the UAE. These are matters which may continue to discourage the widespread use of trusts at a federal level – particularly by non-UAE residents. Time will tell.
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Crucially however, the New Trusts Law does not apply to trusts established in the UAE freezones which have their own trusts legislation (principally the DIFC and the ADGM). Therefore the more internationally recognised form of trusts found in many common law jurisdictions (where trust property legally vests in the trustees and the trust itself does not have legal personality) can still be established within the UAE in these freezones and are completely unaffected by the New Trusts Law. Therefore the UAE as a whole remains an attractive jurisdiction for the establishment of trusts for both UAE residents and non-UAE residents alike.
The UAE is committed to business expansion and the protection of private wealth in the UAE . The New Trusts Law is therefore to be welcomed as an enhanced ‘tool in the toolbox’ of possible forms of financial structure that can be accessed at a UAE federal level, whilst leaving the UAE freezones free to follow their own legislative path.
How can we help?
At Al Tamimi & Company we have developed unrivalled expertise in the areas of family business/private wealth both in the UAE (both at a federal level and in the UAE freezones) and we continue monitor developments in these areas closely.
Our lawyers have extensive experience of successfully advising clients (both UAE residents and non-UAE residents) on appropriate family business and private wealth structures to meet their requirements both within the UAE and the wider MENA region.
Disclaimer:
This briefing has been prepared for the assistance of clients in order to help them understand the important legal issues arising under the New Trusts Law and how it has changed from the Old Trusts Law in the UAE. It is only a summary and is not intended to be comprehensive in its scope. Clients should not rely on this briefing note when establishing any structure or seeking to change an existing one in the UAE and they should seek appropriate legal advice.
Authors and Key Contacts
Richard Catling , Nawal Abdel Hadi , and Stuart Pryke .