Arbitration clauses in trusts: a human rights issue?

Abstract

Abstract Can settlors require beneficiaries and trustees to submit their trust disputes to arbitration? This article examines three of the key arguments favour of enforcement, and the major difficulties posed by the caselaw emanating from the European Court of Human Rights in Strasbourg. It also puts the English law position in an international context. Much has been written, both in previous editions of this journal and elsewhere, on the vexed question of whether a clause in a trust instrument which requires any dispute between trustees and beneficiaries to be submitted to arbitration is enforceable. Practitioners and academics remain divided on this central issue, and unfortunately we still await a decision of the English courts to put an end to the debate.