Trusts and arbitration: The good, the bad and the ugly. 11 March 2021
This session forms part of the STEP Europe Virtual Panel Discussions; a series of six webinars that will run once a month from December 2020 through to May 2021.
Although arbitration of trust disputes has recently gained some traction and is recognised more widely today than some years back: with more and more countries allowing it and the ICC presenting an updated ICC Arbitration Clause for Trust Disputes and Explanatory Note in 2019, arbitrating trust disputes is still not the norm. Arbitration presents a number of advantages generally, but is this the case also for trust disputes? Arbitration is said to be faster and more cost-effective, which are definitely attractions for settlors, trustees and beneficiaries. It is a private and more confidential way of resolving disputes, and lends itself well to being able to select suitable specialist arbitrators who can be well-versed in technical subjects such as trust law, testamentary law, property law, cross-border issues and the like.
However, is this all enough to trump regular judicial proceedings in the case of trust disputes? What about:
- those parties that were not a party to an arbitration clause or arbitration agreement?
- the joinder of third parties?
- the lack of procedural formality that tends to characterise arbitral proceedings?
- the unborn, unascertained and legally incompetent?
- the enforcement of arbitral awards and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (The New York Convention, of June 10, 1958, 21 U.S.T. 2518, 330 U.N.T.S. 3).
This panel will seek to answer these questions, objectively balance out the advantages and drawbacks presented by arbitration and make the case for or against arbitration of trust disputes.
- Dr Anthony Cremona TEP, Ganado Advocates, Malta
- Dr Tonio Fenech TEP, Fenech Farrugia Fiott Legal, Malta
- Dr Alon Kaplan TEP, Alon Kaplan, Advocate & Notary, Israel
- Peter Steen TEP, Mishcon de Reya LLP, UK
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