ADR and Trusts

Grant Jones is an insolvency accountant partner with Cooper Parry LLP. He also practises as an attorney, in-house with a UK hedge fund and as a consultant to the UK firm of Taylor Vinters and the Gibraltar firm of Ellul & Co, as well as having his own arbitration practice. He is a member of the Governing Council of the ICAEW, President of the London Society of Chartered Accountants and a Special Professor of Law at Nottingham University. Peter Pexton is a Fellow of the Institute of Chartered Accountants, an Associate of the Chartered Institute of Arbitrators and an active member of the Society of Trust and Estate Practitioners [STEP]. Founder chairman of the Jersey Branch and immediate past chairman of Verein STEP (Switzerland), he now chairs the Membership Committee of STEP Worldwide. Specialising in offshore trusts, estates and tax planning, Peter practised as a partner in the Jersey firm of Ernst and Young, then as a director of Royal Bank of Canada Trustees Limited and more recently as a director of Ganten Group in Liechtenstein.

Foreword by Geoffrey A Shindler A.Introduction to Dispute Resolution 1Arbitration of Trust and Fiduciary Disputes 1.1Introduction 1.2The Advantages and Disadvantages of Trust Arbitration 1.3The Conceptual Difficulty 1.4Human Rights Issues 1.5Trust Arbitration Cases 1.6Jurisdictions with Statutorily Authorised Trust Arbitration Clauses 1.7Laws Governing an Arbitration and their Impact upon Trust Situations 1.8Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York1958) (the 'New York Convention') 1.9Convention on the Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 30th October 2007 (the 'Euro Convention') 1.10Drafting Arbitration Clauses 1.11Specific Trust Arbitration Clauses 1.12Summary 2Benefits of Mediation for Trust and Fiduciary Disputes 2.1Avoiding Costs Orders 2.2Perspectives 2.3Mediation in a Trust Specific Context 3The Mediation Process 3.1Contractual Requirement to Mediate 3.2Mediation Chronology 3.3Trust Specific Issues 3.4The Settlement Agreement Appendix 1: Agreement for Appointment of the Mediator Appendix 2: Settlement Agreement 4The Role of Professional Advisors 4.1Lawyer's Role during the Mediation Proper 4.2Lawyer's Role before the Mediation 4.3The Lawyer's Role during the Mediation 4.4The Role of Non-lawyer Experts within the Mediation Process 5Tools and Techniques for Mediation 5.1BATNA/WATNA 5.2Interest-Based Mediation (Integrative Mediation) 5.3Doubt and Dissonance Techniques 5.4Hypothesis or Testing Mediation Techniques 6Avoiding Disputes 6.1Good Commercial Practice 6.2Dispute Management 6.3Non-contest Clauses 6.4Duty to Negotiate 6.5Negotiation 6.6Facilitation and Facilitated Negotiation 6.7Facilitation Quintessentially 6.8Negotiation Compared to Mediation 7Cross-Border Aspects and Issues 7.1Types of Dispute 7.2Analysis of Disputes 7.3External disputes 7.4Internal Disputes 7.5Trust Specific Issues in Mediation 8Typical Trust and Fiduciary Disputes 8.1Trustees and Third Party Disputes 8.2Disputes between Parties to a Trust 8.3Costs: Fees and Disbursements 9Preparation of Briefings and Openings by Mediants 9.1Pre-mediation-proper Items 9.2Mediation Proper Items 9.3The Opening Statement Appendix 1: A Suggested Settlement Checklist Template 10The Psychology of Mediation 10.1Conflict 10.2Chronology of Mediation 10.3General Psychological Factors Affecting Mediation 10.4Being Heard 11The Mediator's Perspective 11.1Powers to Mediate and Settle Disputes 11.2Ethical Issues 11.3Disclosure of Information 11.4Relative Size of Dispute 12Considerations for Islamic and Sharia Trust ADR 12.1Islamic Jurisprudence and the Concept of the Trust 12.2Ontario: an Act to amend the Arbitration Act 1991, 2006 ('the Act') 12.3Arbitration and Mediation Services (Equality) Bill (the 'English Bill') 12.4ADR Codes of Conduct 12.5Arbitration and Mediation in Islamic Jurisprudence B Jurisdictions Introduction 1Australia 1.1Arbitration Law and Practice 1.2Local Trust Law 1.3Local Mediation Law and Practice 1.4Ratification of the New York Convention 1.5Attitude of the Local Courts and Authorities to ADR 1.6Use of ADR Clauses and Provisions in Trust and Foundation Instruments 1.7Mandatory Requirements for Mediation 1.8Enforcement of ADR Awards 2Bahamas 2.1Arbitration Law and Practice 2.2Trust Law 2.3Mediation Law and Practice 2.4Ratification of the New York Convention ('NYC') 2.5Attitude of Local Courts and Authorities to ADR 2.6Use of ADR Clauses and Provisions in Trust and Foundation Instruments 2.7Mandatory Requirements for Mediation 2.8Enforcement of ADR Awards 3Barbados 3.1Arbitration Law in Practice 3.2Trust Law 3.3Mediation Law and Practice 3.4Ratification of the New York Convention ('NYC') 3.5Attitude of Local Courts and Authorities to ADR 3.6Use of ADR Clauses and Provisions in Trust and Foundation Instruments 3.7Mandatory Requirements for Mediation 3.8Enforcement of ADR Awards 4The British Virgin Islands 4.1Arbitration Law and Practice 4.2Trust Law 4.3Mediation Law and Practice 4.4Ratification of the New York Convention ('NYC') 4.5Attitude of Local Courts and Authorities to ADR 4.6Use of ADR Clauses and Provisions in Trust Instruments 4.7Mandatory Requirements for Mediation 4.8Enforcement of ADR Awards 5Canada 5.1Arbitration Law and Practice 5.2National initiatives to implement arbitration 5.3Trends and tendencies in arbitration 5.4Trust Law 5.5Mediation Law and Practice 5.6Ratification of the New York Convention 5.7Attitude of Local Courts and Authorities to ADR 5.8Use of ADR Clauses and Provisions in Trust and Foundations Instruments 5.9Mandatory Requirements for Mediation 5.10Enforcement of ADR Awards 6Republic of Cyprus 6.1Arbitration Law and Practice 6.2Trust Law 6.3Mediation Law and Practice 6.4Ratification of the New York Convention ('NYC') 6.5Attitude of Local Courts and Authorities to ADR 6.6Use of ADR Clauses and Provisions in Trust and Foundation Instruments 6.7Mandatory Requirements for Mediation 6.8Enforcement of ADR Awards 7England and Wales 7.1Arbitration Law and Practice 7.2Trust Law 7.3Mediation Law and Practice 7.4Ratification of the New York Convention ('NYC') 7.5Attitude of Local Courts and Authorities to ADR 7.6Use of ADR Clause and Provisions in Trust Instruments. 7.7Mandatory Requirements for Mediation 7.8Enforcement of ADR Awards 8Florida 8.1.Arbitration Law and Practice 8.2.Trust Law 8.3.Mediation Law and Practice 8.4.Ratification of the New York Convention ('NYC') 8.5.Attitude of Local Courts and Authorities to ADR 8.6.Use of ADR Clauses and Provisions in Trust and Foundation Instruments 8.7.Mandatory Requirements for Mediation 8.8.Enforcement of Arbitration Awards and Mediated Settlement Agreements 9France 9.1Arbitration Law and Practice 9.2Trust Law 9.3Mediation Law and Practice 9.4Ratification of the New York Convention ('NYC') 9.5Attitude of Local Courts and Authorities to ADR 9.6Use of ADR Clauses and Provisions in Trust and Foundation Instruments 9.7Mandatory Requirements for Mediation 9.8Enforcement of ADR Awards 10Gibraltar 10.1Arbitration Law and Practice 10.2Trust Law 10.3Mediation Law and Practice 10.4Ratification of the New York Convention ('NYC') 10.5Attitude of Courts and Authorities to ADR 10.6Use of ADR Clauses and Provisions in Trust and Foundation Instruments 10.7Mandatory Requirements for Mediation 10.8Enforcement of ADR Awards 11Guernsey 11.1Arbitration Law and Practice 11.2Trust and Foundation Law 11.3Mediation Law and Practice 11.4Ratification of the New York Convention ('NYC') 11.5Attitude of Local Courts and Authorities to ADR 11.6USE of ADR Clauses and Provisions in Trust and Foundation Instruments 11.7Mandatory Requirements for Mediation 11.8Enforcement of ADR Awards 12Hong Kong Special Administrative Region (HKSAR) 12.1Arbitration Law and Practice 12.2Trust Law 12.3Mediation Law and Practice 12.4Ratification of the New York Convention ('NYC') 12.5Attitude of Local Courts to ADR 12.6Use of ADR Clauses and Provisions in Trust and Foundation Instruments 12.7Mandatory Requirements for Mediation 12.8Enforcement of ADR Awards 13India 13.1Arbitration Law and Practice 13.2Trust Law 13.3Mediation Law and Practice 13.4Ratification of the New York Convention ('NYC') 13.5Attitude of Local Courts and Authorities to ADR 13.6Use of ADR Clauses and Provisions in Trust and Foundation Instruments 13.7Mandatory Requirements for Mediation 13.8Enforcement of ADR Awards 14Ireland 14.1Arbitration Law and Practice 14.2Trust Law 14.3Mediation Law and Practice 14.4Ratification of the New York Convention 14.5Attitude of Local Courts and Authorities to ADR 14.6Use of ADR Clauses and Provisions in Trust and Foundation Instruments 14.7Mandatory Requirements for Mediation 14.8Enforcement of Arbitration Awards and ADR 15Isle of Man 15.1Arbitration Law and Practice 15.2Trust Law 15.3Mediation Law and Practice 15.4Ratification of the New York Convention 15.5Attitude of Local Courts and Authorities to ADR 15.6Use of ADR Clauses and Provisions in Trust and Foundation Instruments 15.7Mandatory Requirements for Mediation 15.8Enforcement of ADR Awards 16Israel 16.1Arbitration Law and Practice 16.2Trust Law 16.3Mediation Law and Practice 16.4Ratification of the New York Convention ('NYC') 16.5Attitude of Local Courts and Authorities to ADR 16.6Use of ADR Clauses and Provisions in Trusts and Foundation Instruments 16.7Mandatory Requirements for Mediation 16.8Enforcement of ADR Awards 17Italy 17.1Arbitration Law and Practice 17.2Trust Law 17.3Mediation Law and Practice 17.4Ratification of the New York Convention 17.5Attitude of Local Courts and Authorities to ADR 17.6Use of ADR Clauses and Provisions in Trust and Foundation Instruments 17.7Mandatory Requirements for Mediation 17.8Enforcement of ADR Awards 18Jersey 18.1Arbitration Law and Practice 18.2Trust and Foundation Law 18.3Mediation Law and Practice 18.4Ratification of the New York Convention 18.5Attitude of Local Courts and Authorities to ADR 18.6Use of ADR Clauses and Provisions in Trust and Foundation Instruments 18.7Mandatory Requirements for Mediation 18.8Enforcement of ADR Awards 19Liechtenstein 19.1Arbitration Law and Practice 19.2Trust and Foundation Law 19.3Mediation Law and Practice 19.4Ratification of the New York Convention ('NYC') 19.5Attitude of Local Courts and Authorities to ADR 19.6Use of ADR Clauses and Provisions in Trust and Foundation Instruments 19.7Mandatory Requirements for ADR 19.8Enforcement of ADR Awards 20Malaysia 20.1Arbitration Law and Practice 20.2Trust Law 20.3Mediation Law and Practice 20.4Ratification of the New York Convention ('NYC') 20.5Attitude of the Malaysian Courts and Authorities to ADR 20.6Use of ADR Clauses and Provisions in Trust and Foundation Instruments 20.7Mandatory Requirements for Mediation 20.8Enforcement of ADR Awards 21Mauritius 21.1Arbitration Law and Practice 21.2IAA Rules 21.3Trust and Foundation Law 21.4Mediation Law and Practice 21.5Ratification of the New York Convention 21.6Attitude of Local Courts and Authorities to ADR 21.7Use of ADR Clauses and Provisions in Trust and Foundation Instruments 21.8Mandatory Requirements for Mediation 21.9Enforcement of ADR Awards 22New Zealand 22.1Arbitration Law and Practice 22.2Trust Law 22.3Mediation Law and Practice 22.4Ratification of the New York Convention 22.5Attitude of Local Courts and Authorities to ADR 22.6Use of ADR Clauses and Provisions in Trust and Foundation Instruments 22.7Mandatory Requirements for Mediation 22.8Enforcement of ADR Awards 23Panama 23.1Arbitration Law and Practice 23.2Trust Law 23.3Mediation Law and Practice 23.4Ratification of the New York Convention 23.5Attitude of Local Courts and Authorities to ADR 23.6Use of ADR Clauses and Provisions in Trust and Foundation Instruments 23.7Mandatory Requirements for Mediation 23.8Enforcement of ADR Awards 24Scotland 24.1Arbitration Law and Practice 24.2Trust Law 24.3Mediation Law and Practice 24.4Ratification of the New York Convention 24.5Attitude of Local Courts and Authorities to ADR 24.6Use of ADR Clauses and Provisions in Trust and Foundation Instruments 24.7Mandatory Requirements for Mediation 24.8Enforcement of ADR Awards 25Singapore 25.1Arbitration Law and Practice 25.2Trust Law 25.3Mediation Law and Practice 25.4Ratification of the New York Convention ('NYC') 25.5Attitude of Local Courts and Authorities to ADR 25.6Use of ADR Clauses and Provisions in Trust and Foundation Instruments 25.7Mandatory Requirements for Mediation 25.8Enforcement of ADR Awards 26Switzerland 26.1Introduction to Arbitration Law and Practice 26.2Trust Law 26.3Mediation Law and Practice 26.4Ratification of the New York Convention ('NYC') 26.5Attitude of Local Courts and Authorities to ADR 26.6Use of ADR Clauses and Provisions in Trust and Foundation Instruments 26.7Mandatory Requirements for Mediation 26.8Enforcement of ADR Awards 27United Arab Emirates 27.1Arbitration Law and Practice 27.2Trust Law 27.3Mediation Law and Practice 27.4Ratification of the New York Convention ('NYC') 27.5Attitude of Local Courts and Authorities to ADR 27.6Use of ADR Clauses and Provisions in Trust and Foundation Instruments 27.7Mandatory Requirements for Mediation 27.8Enforcement of ADR Awards