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Herbert Smith Freehills Trust Companies Survey: Introduction

London
Legal Briefings – By Richard Norridge

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Between March and May 2022, we conducted the second edition of our survey of trust companies. We asked trust companies of different sizes, from a variety of onshore and offshore jurisdictions, with different ownership structures, questions about the most significant risk and compliance issues they face. The survey comprised 19 questions.

When I wrote the introduction to the last edition of our trust companies risks survey in April 2020, I noted that the one thing we did not ask people was the risks posed by major public health incidents as coronavirus disease (COVID-19) became the biggest threat to countless businesses around the world.  Mercifully, for many around the world the impact of COVID-19 is receding, although it continues to be a significant issue for many.  This time it is the invasion of the Ukraine which has come as the unexpected event which has had and continues to have repercussions around the world – not to overlook the terrible direct impact on the Ukraine and its people.

In the last edition, I commented that COIVD-19 felt like the archetypal Black Swan i.e. those life changing outliers which seemingly almost no-one saw coming.  I highlighted that some may note that the UK’s National Risk Register 2017 (the last one I could find) warned of the possibility of a pandemic with wide ranging health and economic impacts, but the extent of the lockdowns around the world seems to have been unanticipated.  That document was updated as the National Risk Register 2020 and includes this passage: "Conflict and instability around the world is likely to continue, driven by resource shortages and regional tensions, plus the displacement of large groups of people due to issues such as climate change."  However, the scale of the ramifications of the invasion of the Ukraine seems to have been unanticipated.

In this continuingly uncertain world, the themes of our survey remain as relevant as ever.

The respondents

Around a fifth of the total number of responses we received were from smaller trust businesses (i.e. fewer than 25 employees), and just over a quarter from large entities (i.e. over 200 employees). As with the last edition, the majority of respondents were medium-sized trust companies, with 25-200 employees.

HOW MANY EMPLOYEES DO YOU HAVE IN YOUR FIDUCIARY BUSINESS?

In terms of jurisdictional spread, the respondent entities operate in all major International Financial Centres, such as Bermuda, British Virgin Islands, the Cayman Islands, Guernsey, Isle of Man, and Jersey, as well as some of the major onshore trust jurisdictions, including England and Wales, Hong Kong, Singapore, Switzerland, and Luxembourg.

WHICH JURISDICTION(S) DO YOU OPERATE IN?*

*respondents were able to choose more than one jurisdiction

The survey also covered a wide range of trust company ownership structures. Around 11% of the respondent businesses are owned by professional services firms and around 23% are private equity backed (up from 12% in the last edition). Around 26% are bank owned, and just under 40% are independent.

WHAT IS YOUR OWNERSHIP STRUCTURE?

Specific topics covered

Over the coming weeks, we will be releasing the results of our survey and counting down from seven to one the top risks trust companies face. In broad terms, our forthcoming publications will cover the following topics (listed in alphabetical order, so as not to give anything away), and will identify how significant a risk each of these is perceived to be by trust professionals:

  • Anti-Money Laundering (AML): We will discuss and analyse the most significant AML compliance challenges for trustees; how AML compliance issues have affected trust company businesses in the last year; AML reforms; the effect of data leaks/hacks and more prescriptive Know your Customer (KYC) requirements.
  • Beneficiary disputes: Our survey reveals the most common sources of beneficiary disputes (i.e. disputes brought by beneficiaries against trustees) that trust companies encounter. We will also consider the measures trustees might be able to take to minimise any adverse consequences from such disputes.
  • Cybersecurity: Our analysis will cover what the main cybersecurity risks faced by trustees are; the types of cyberattacks trust companies tend to suffer in practice; and what trust companies are currently doing, and what they could be doing to tackle the cybersecurity risks they face.
  • Data protection: We have investigated what trust companies find the most challenging about privacy compliance, and will provide practical guidance on managing the most difficult aspects.
  • Regulatory compliance: We will explore general regulatory risks including those posed by increased remote working and have mapped trust companies’ views on whether regulatory intervention in their business is inevitable.
  • Reputational risks: We will discuss the reputational risks for trust company clients arising out of being associated with “offshore” structures and jurisdictions.
  • Tax compliance: Our publications will cover what trust companies identified as the most burdensome tax compliance issues and the most helpful solutions for handling tax compliance within trust company businesses.

Over the next few of weeks you will receive market leading and thought provoking content which will be equally helpful for (a) trust companies trying to navigate the increasingly complex and regulated risk and compliance landscape, and (b) others operating in the private wealth and trusts industries, with insights into the major issues trust companies are facing.

We are excited to embark on this journey, and look forward to sharing our insights along the way.

Articles in this series