La scelta della legge regolatrice del trust e la giurisdizione della Corte per il trust ed i rapporti fiduciari di San Marino

San Marino has acceded to the Hague Convention on the Law Applicable to Trusts and their Recognition and has accompanied the ratification of the Convention with the introduction of comprehensive trust legislation into its domestic legal system. According to this law, all relationships governed by the law of the Republic of San Marino are considered, from the point of view of that legal system, as domestic trusts. However, the choice of San Marino law as the law governing the relationship, pursuant to Article 6 of the Hague Convention, also implies the attribution of jurisdiction to the Court for trusts and fiduciary relationships. The problem of the recognition of voluntary jurisdiction measures in Italy stems from the fact that Article 5 of the Convention between Italy and the Republic of San Marino makes the recognition of judgments subject to the condition that they have the authority of res judicata in the State of origin: a circumstance which, obviously, does not apply to voluntary jurisdiction measures, which are the measures most frequently adopted by the Court for trusts in San Marino. This point effectively poses an insurmountable problem with regard to measures which, even from the point of view of Italian law, can be classified as contentious. However, the situation is different for measures that can be classified as belonging to the genus of voluntary jurisdiction even under Italian law. For measures falling within this category, it seems to us that recognition is likely to take place on the basis of the system of Italian private international law.