The Trust-Waqf Convergence: A Comparative Analysis of English Trusts and Saudi Waqfs

Abstract

Two recent UK Supreme Court decisions—Akers v Samba and Byers v Saudi National Bank—expose a practical risk: under lex situs, equitable interests may be treated as extinguished when trust assets pass into a non-trust jurisdiction. In Byers, the court recognised that extinguishment enabled fraudulent trustees to “route assets to third parties through jurisdictions where the law extinguishes equitable proprietary interests” per Lord Burrows. The extinguishment of beneficiary interests is nothing less than termination of the trust, an outcome equity cannot allow. Civil law jurisdictions have historically struggled to recognise the trust; in common law theory, trusts split ownership between legal and equitable ownership. This concept normatively clashes with civil law doctrine. The Hague Convention on the Law Applicable to Trusts and on their Recognition (the Hague Trust Convention of 1985) attempted to bridge the civil-common law gap, to limited success. As Saudi Arabia recognises an analogous institution of waqf (plural, awqaf) and is committed to Islamic Shariah, the question arises on whether awqaf are sufficiently analogous, or if the doctrinal challenge is greater than with civil law. This dissertation asks whether English family trusts and Saudi family awqaf can be mutually recognised notwithstanding formal divergence. It adopts a formal-functional method and distils a thin recognition test anchored in five structural “pillars”: asset segregation, fiduciary duty, purpose-binding, role-separation, and determinacy. Applied, the test shows that Saudi waqf and the English trust are functionally adjacent enough for courts to recognise each other’s arrangements and calibrate remedies without statutory transplantation. The analysis is illustrated with judge-facing hypotheticals and an integrated “trust–waqf” model, aimed at guiding academics, practitioners, and judges confronting cross-border family wealth structures. The upshot is doctrinally modest but operationally significant: recognition should track function and protections, not labels, unless a hard local rule intervenes.