TRUSTS – WISHES OF SETTLOR – JURISDICTION AND APPLICABLE LAW – CHOICE OF LAW – LITIGATION FUNDING AGREEMENTS
The decision of the Chief Justice resulted from a six-week trial which focused on whether the Defendant Trustee had a contractual obligation to provide funding of 120 million Swiss Francs for the construction of an Opera House in Switzerland. The Trustee had withdrawn funding from the project in 2010 following the death of the settlor. The Plaintiffs were a Swiss charitable foundation which had been established for the express purpose of planning and constructing the Opera House (the “Foundation”).
A key consideration in the decision was the question of whether the Trustee’s contractual obligations (if any were in fact owed) were governed by Swiss or Bermuda law. In this respect, the Chief Justice held that in the absence of an express choice of law by the parties, the Court would look to either: (1) an implied or inferred choice based on the facts of the particular case or (2) the system of law with which the alleged contract has closest connection. On the facts, the Chief Justice held that Swiss law was the applicable law.