Arbitration in Trust Disputes - Chapter 26 - Trusts and Estate Planning in Israel - Second Edition
Alon Kaplan, a member of the British-based Society of Trusts and Estate Practitioners (STEP), and among the founders of STEP Israel, is now President of the Israel branch of STEP, and is and currently Academic Coordinator and Lecturer of the STEP Diploma Course at the Institute of Advanced Studies at Tel Aviv University’s Faculty of Law.
Meytal Liberman, Advocate and Notary, TEP, advises private clients in Israel and internationally on trusts and estate planning.
Originally from Trusts and Estate Planning in Israel, Second Edition and may be purchased here.
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Chapter 26. ARBITRATION IN TRUST DISPUTES
26.1. INTRODUCTION
Arbitration is commonly used as a mechanism for resolving disputes outside the courts. It offers advantages such as procedural flexibility, confidentiality, and the potential for a more streamlined process. In many contractual settings, parties choose to include arbitration clauses as part of their agreed dispute-resolution framework. Can the same mechanism be employed in the context of trusts?
Unlike ordinary bilateral agreements, where identifiable parties may expressly consent to arbitration, a trust is not merely a contract but a complex web of legal relationships. It involves settlors, trustees, beneficiaries, and at times additional stakeholders, whose rights and interests may arise at different stages and who have not necessarily participated in the creation of the trust instrument. This structure challenges traditional concepts of consent and privity that typically underpin arbitration agreements.
Accordingly, the application of arbitration to trust disputes is not straightforward. It gives rise to doctrinal, procedural, and practical questions that require careful consideration. This chapter examines those complexities and explores whether, and under what conditions, arbitration may serve as an appropriate forum for resolving disputes relating to trusts.
26.2. ARBITRATION UNDER ISRAELI LAW
26.2.1. The Arbitration Agreement
The Israeli Arbitration Law of 1968 governs arbitration procedures in Israel. According to this Law, to resolve a dispute in arbitration, the following fundamental condition must be met: an arbitration agreement must be entered into.
The scholar Ottolenghi analyzed the foundation of such arbitration agreement:
To ascertain whether an agreement has come into being between the parties to litigate through arbitration and if so, the extent of its validity, reference should be made to the general laws of contract. It should, of course, be remembered that an arbitral agreement is a special agreement, to which, first and foremost, the provisions of the Arbitration Law apply; and where these are not in accord with the provisions of the laws of contracts, the provisions of the Arbitration Law shall prevail. However, where no special provisions exist, the principles of the law of contracts can be applied.
Such arbitral agreement is defined in section 1 as “a written agreement to refer to arbitration a dispute which has arisen between the parties to the agreement or which may arise between them in the future, regardless of whether an arbitrator is named in the agreement or not.” Thus, the law requires “a written agreement.” But Ottolenghi is of the opinion that the parties can also reach an oral agreement to submit the matter for arbitration.
