The Arbitration Of Trusts Disputes: Squaring The Circle

The possibility of arbitrating internal trust disputes has vexed lawyers for some time. Noting the remarkable growth of arbitration as a dispute resolution mechanism, and the importance of party consent for an arbitration to be valid and binding, a seemingly insuperable difficulty is obtaining the consent of beneficiaries. This difficulty may be more apparent than real. It is argued that various mechanisms may be deployed to properly obtain the consent of beneficiaries, or operate to deem consent to have been given. Further issues, like res judicata, are similarly analysed. Ultimately, trust disputes can—and, where appropriate, should—be arbitrated.