The current position in England and Wales
The current prevailing opinion is that arbitration is not
readily available as a tool in trusts disputes under the law of
England and Wales. Indeed this has explicitly been stated to be the
case by the Law Commission in their Programme of Law Reform where
they stated that 'a clause in a trust instrument requiring
disputes to be arbitrated is not binding.'1
But why is this something that it might be desirable to reform?
What are the advantages to arbitration that could make this a
popular course of action in trusts disputes?
Well, arbitration affords a degree of privacy that litigation
does not necessarily offer. Arbitral proceedings and any arbitral
award are generally not released to the public. It allows
discussions to take place behind closed doors, which may be popular
where familial conflicts are playing out.
