THE ENFORCEABILITY OF ARBITRATION CLAUSES IN TRUSTS

This article considers the enforceability of arbitration clauses which are included in trust documentation. It focuses on two main questions. The first is whether internal trust disputes are capable of being settled by arbitration. The article offers arguments in favour of the arbitrability of such disputes. It then addresses the question of whether parties to an internal trust dispute can be forced to arbitrate, rather than litigate, where the trust documentation contains an arbitration clause. It is argued that there are real difficulties in the argument that such clauses can be enforced as arbitration agreements, under the ordinary arbitration statutes, but that the court could potentially enforce such a clause under its inherent jurisdiction to control its proceedings.