E-ISSN 2281-4612 ISSN 2281-3993 Academic Journal of Interdisciplinary Studies MCSER Publishing, Rome-Italy Vol 3 No 3 June 2014  ʹ͸ͻ  Swiss “Fiducie” vis-a-vis French “Fiducie” (Terminological “Coincidences”) Irina Gvelesiani Associate Professor of the Faculty of Humanities at Ivane Javakhishvili Tbilisi State University, Tbilisi, Georgia irina.gvelesiani@tsu.ge Doi:10.5901/ajis.2014.v3n3p269 Abstract “Trust” has always been regarded as the sole possession of the common-law world. However, the popularity of this legal institution has greatly increased during the last decades. Nowadays, under the influence of the globalizing processes „trust-like devices” are appearing in many civil law jurisdictions or are under active consideration in the economic spheres of some countries. The given paper deals with the comparative analysis of the Swiss and French “fiducie”-s (contemporary trust-like mechanisms of Switzerland and France) via putting emphasis on the major similarities and differences of these institutions. The Swiss fiduciary transactions developed in 1893 in response to the practical necessity. Initially, these transactions aimed at the transference of ownership as security for a debt. However, in 1905 they were arranged for fiduciary management. Nowadays, the Swiss “fiducie” considers the transference of assets by a natural or a legal person to the fiduciary (another natural or legal person), who performs management tasks for the purpose of serving the creator’s or beneficiary’s interests. The Swiss law differentiates several forms of “fiducie” (“fiducie-gestion”, “fiducie-libéralité” and “fiducie-sûreté”), which have conceptual counterparts (“coincidences”) in the French legal system. Characterization of terminological and semantic “coincidences”, their separation and precise description – this is the major task of the given paper and one of the urgent questions of the contemporary legal studies. 1. Introduction “Trust” has always been regarded as the sole possession of the common-law world. However, the popularity of this legal institution has greatly increased during the last decades. Nowadays, under the influence of the globalizing processes „trust-like devices” are appearing in many civil law jurisdictions or are under active consideration in the economic spheres of some countries. The given paper deals with the comparative analysis of the Swiss and French “fiducie”-s (contemporary trust-like mechanisms of Switzerland and France) via putting emphasis on the major similarities and differences of these institutions. 2. “Fiducie” - the Swiss “Trust-like” Mechanism of the 21 th Century During the 20 th century the Swiss law recognized “trust-like” device “Treuhand”, which considered three major elements: “Treugeber” (a settler), “Treuhänder”/“Treuhaender” (a trustee) and “Begünstigter” (a beneficiary). On 1 July 2007 Switzerland ratified the Hague Convention on the Law Applicable to Trusts and on their Recognition and the era of the emergence of Swiss “fiducie” began. The prominent scholars L. Thevenoz and J. Dunand give us a precise description of this phenomenon: “Swiss law, like other legal systems, recognizes several institutions which tend to distinguish between the legal owner of an asset (the owner of an object, or holder of a receivable) and the beneficial owner. One such institution, which was not taken into account in the drafting of the Civil Code (1907) (1) or the Code of Obligations (1881, 1911), is the fiducie (in German, Treuhand)” (Thévenoz L., 1999). It’s worth mentioning, that the existence of the Swiss “Treuhand” caused the controversy between the scholars of the 20 th century. It seemed, that the emergence of the “fiducie” ended these debates. However, the 21 st century brought “the wind of changes” in the Swiss legal and terminological systems. A. Peyrot described this phenomenon in the following way: “there is no such thing as a Swiss trust” (Peyrot A., 2013). If we take into consideration A. Peyrot’s words, than how can we interpret the “fiducie”? Can it be considered as the Swiss “trust” or an innovative “trust-like” mechanism of the 21 st century? It’s a well-known fact, that “a fiducie is a combination of legal transactions relating both to the law of obligations (it is a contract) and to the law of property (it is a disposition of property). The creator undertakes, by agreeing to a contract (the convention de fiducie), to transfer the full legal title to certain choses or rights (the fiduciary property), while the fiduciary undertakes to keep and manage … and to restore the fiduciary property (either the original property or some