chapter  17
15 Pages

CONFIDENTIALITY AND THE REGULATION OF

TRUST ACTIVITY

The prevalent view has been that confidentiality should be seen in a pure and ideal sense, such that zero-tax jurisdictions were characterised as manifesting confidentiality, while no-tax or low-tax jurisdictions were considered by their very nature as being unable to accommodate confidentiality. Secrecy as a concept therefore became linked with the notion of confidentiality. It is, however, obvious that confidentiality does not exist in a pure form, and indeed it may be more appropriate to explore the concept as one of examining procedures which limit disclosure in jurisdictions of both a low-tax and zero-tax nature. This more mature and current approach recognises the significance and the need for regulation of trust activity in all jurisdictions irrespective of size or tax regime. Such regulation is manifested at the micro level within the many jurisdictions whose residents use offshore trusts and indeed, more recently, such regulation is manifested in the offshore trust jurisdictions themselves. Hence, one increasingly recognises budgetary and policy initiatives in jurisdictions such as the US, Canada, the UK, Switzerland and Italy, which discourage their residents from using offshore trusts. This approach at a micro level mirrors and is integrally related to the ongoing regulation at the macro level which gained special prominence towards the end of the 20th century, as represented by the reports of the Financial Action Task Force (FATF), Financial Stability Forum (FSF), the Organisation for Economic Co-operation and Development (OECD) and finally the KPMG Report on the British-dependent territories.