The recognition of tracing under the Hague Trusts Convention: an analysis of article 11 para 3 lit d from the perspective of Swiss law

The purpose of this article is to discuss whether the tracing remedy falls within the scope of the Hague Trusts Convention (HTC) and, if yes, whether and to which extent it should be recognized in the Contracting States. This article will first present the relevant provisions of the Convention and the position of the Swiss Government. In a second part, an interpretation of the relevant provisions of the Convention in favour of the recognition will be proposed. This article will mainly deal with article 11 para 3 lit d HTC and its interpretation. However, in addition, a second stage of reasoning would have to be made in order to eventually come to the conclusion that tracing must be recognized in civil law countries. In fact, the compatibility of the recognition of tracing with the forum's mandatory rules would have to be verified in each case under article 15 HTC. This analysis is jurisdiction-specific and will not be presented here.