Part One: English influences in the Chilean Fideicomiso
By León Carmona Fontaine, Assistant Professor of Private Law at the Pontificia Universidad Católica de Chile.
Latin American and most European jurisdictions are commonly regarded as civil law jurisdictions. Yet one notable difference between the two is that trust instruments were introduced in Latin America much earlier than in Europe. Panama (1925), Mexico (1926), El Salvador (1926), and Puerto Rico (1928) were pioneers of this development, followed by Venezuela (1956) and Colombia (1971), whereas Argentina (1995) and Uruguay (2003) adopted such instruments at a later stage. By contrast, with the exception of Liechtenstein (1926), European civil law jurisdictions introduced trust instruments considerably later, and primarily due to the influence of the Hague Trusts Convention. Romania (2011), the Czech Republic (2014), and Hungary (2014) are examples of this much later development.
One explanation for this divergence between Europe and Latin America lies in the stronger influence of the United States in Latin America. However, there is also another factor that has received far less attention so far: the influence that English law may have exercised on the fideicomiso as regulated in the Chilean Civil Code of 1855, and the role that the Chilean fideicomiso played in the introduction of trust instruments in other jurisdictions of Latin America. As this entry and a forthcoming one argue, there are several reasons to believe that the fideicomiso provided for in the Chilean Civil Code was influenced by English legal ideas and later functioned as an important bridge for the introduction of trust instruments in Latin America.
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