Introduction
Those in the private wealth and trusts industry will be well
aware of 'Anti-Bartlett clauses' in trust deeds. Such
clauses are drafted to exclude the duty of a trustee to supervise
or intervene in the business affairs of companies in which the
trust holds shares. The first instance decision and 2017 judgment
of the Hong Kong Court of Appeal (Zhang Hong Li v DBS Bank (Hong
Kong) Limited) concerning a Jersey law governed trust, had cast
doubt on the efficacy of such clauses. However, on further appeal,
in a judgment handed down on 22 November 2019, the Hong Kong Court
of Final Appeal has essentially restored the status quo and
confirmed that Anti-Bartlett clauses effectively exempt trustees
from any liability for losses incurred in transactions by a
trust's underlying investment companies, unless they become
aware of actual dishonesty. This decision is of wider importance to
the common law trust jurisdictions as the relevant principles
engaged are likely
