01 June 2015

Offshore Investment: Can Human Rights Trump Offshore Asset Protection Trusts?

Aggressive asset protection planning may be used to avoid tax and other obligations. Whatever one's opinion may be about the moral implications of such activity, the reality is that the clever use of devices such as offshore asset protection trusts can effectively shield assets from national treasuries, victims of fraud and other creditors alike.  While the settlor’s personal liability remains, the separation of ownership that a trust entails means that any judgment against a settlor is worthless if he has successfully divested himself of assets that would otherwise have been available to satisfy such judgment.  That, it seems, is the end of the matter.  Or is it? 

Much will depend on the nature of the right sought to be asserted against assets that have been placed into trust.  Martin Kenney demonstrates how the use of trusts to protect property that has been taken from someone else gives rise to a human rights question. While commentators may argue about the hierarchy of human rights and the status of the right to property within that hierarchy, the fact remains that the right is guaranteed in varying forms in a variety of international and regional human rights instruments.

No comments: