Arbitration Clauses in Trusts
The U.S. developments and a Comparative Perspective
This paper aims to present a comparative law study about the enforceability of arbitration clauses in a trust, with particular emphasis on the U.S. and Latin American developments and a notion of the issue in the international context. Part 1 is an introduction of the topic. Part 2 will discuss arbitration in estate planning by providing a brief description of its advantages in comparison to litigation, by commenting on different ways to implement enforceable arbitration in estate planning devices and then by suggesting mediation as a way to commence the forthcoming process prior to binding arbitration. Part 3 will discuss the developments in the United States with binding arbitration clauses in trusts and wills, looking at case law, states’ projects and institutional initiatives. Part 4 will address the international experience, reviewing international movements toward the recognition of mandatory arbitration clauses in estate planning devices and some legislation that officially recognizes the clauses in wills and trusts. Finally, Part 5 will present a conclusion and my recommendation, regarding the need of legislation.