1 The trust is a concept developed by English equity courts during the twelfth and thirteenth centuries. The trust is governed by the provisions of the trust instrument and, absent any specific provisions, general principles of common law apply, supplemented by local statutory trust law. While many (offshore) trust jurisdictions—mostly former territories or colonies of the British Empire—have developed their own trust law, they often follow the developments in English law. As such, they have adopted many English trust statutes or enacted similar legislation, and the decisions of the English courts are highly persuasive for them. But see Jonathan Harris, ‘Jurisdiction and Judgments in International Trusts Litigation—Surveying the Landscape’ (2011) 17 Trusts and Trustees 236, 236 (noting that ‘many offshore jurisdictions, which had previously tended to follow the English common law lines of authority, now find themselves increasingly departing from them in the pursuit of effective asset protection legislation designed to attract trusts business to the local jurisdiction’).
2 The Hague Convention on the Law Applicable to Trusts and on Their Recognition  SR 0.221.371 (hereinafter Hague Trust Convention); Georg von Segesser, ‘Arbitrating Trust Disputes: Effect of the Hague Convention on the Law Applicable to Trusts and Their Recognition’ in SI Strong (ed), Arbitration of Trust Disputes: Issues in National and International Law (Oxford University Press 2016) paras 19.01–19.81.
3 So far, twelve countries, including some civil law jurisdictions such as Italy, the Netherlands, Liechtenstein, and Switzerland, have ratified the Hague Trust Convention, as has the United Kingdom and twelve British overseas territories, including the British Virgin Islands, Bermuda, Guernsey, and Jersey. The Hague Trust Convention contains conflict of law rules for trusts with a cross-border element. Aspects such as whether the settlor had the capacity to create a trust, what requirements a married settlor must meet to establish a trust, the protection of minor parties, the protection of creditors in matters of insolvency or succession, and forced heirship rights are not governed by the Hague Trust Convention. Insofar as the convention excludes these aspects, the law designated by the conflict of law rules of the respective forum is applicable. For example, if a settlor dies domiciled in Switzerland, the Swiss court will look at Swiss forced heirship law to determine the extent to which trust assets can be attacked. Likewise, Swiss matrimonial law is in principle relevant to whether trust assets are subject to division in case of Swiss divorce proceedings.
4 See eg Peter Hodson, ‘Mediation: An Alternative to Trust Litigation’ (2000) 16 Trusts and Trustees 11; Standard Klinefelter and Sandra Gohn, ‘Alternative Dispute Resolution: Its Value to Estate Planners’ (1995) 22 Estate Planning 147.
5 Lawrence Cohen and Marcus Staff, ‘The Arbitration of Trust Disputes’ (1999) 4 Journal of International Trust and Corporate Planning 203.
6 See eg David Wallace Wilson, ‘Switzerland’ in Grant Jones and Peter Pexton (eds), ADR and Trusts: An International Guide to Arbitration and Mediation of Trust Disputes (Spiramus Press 2015) 357.
7 In 2012, the journal Trusts and Trustees devoted an entire issue (volume 18(4)) to trust arbitration. See also David Brownbill, ‘Arbitration and Mediation of Trust Disputes, Theory, Risk and Practice’ (2006) Trust et attività fiduciarie 336; David Brownbill, ‘Trust Arbitration: What Might be Possible? (With a Little Help From Statute)’ (2009) 116 ACTAPS Newsletter 19; Roman Huber, Gerichtsstands- und Schiedsgerichtswahl in trustrechtlichen Angelegenheiten (Schulthess 2013); Charles Lloyd and Jonathan Pratt, ‘Trust in Arbitration’ (2006) 12 Trusts and Trustees 18; Georg von Segesser, ‘Arbitrability in Estate and Trust Litigation’ in Rosalind Atherton (ed), Paper of the International Academy of Estate and Trust Law (Kluwer Law International 2002) 21; Georg von Segesser, ‘A Step Forward: Addressing Real and Perceived Obstacles to the Arbitration of Trust Disputes’ (2014) 20 Trusts and Trustees 43 (hereinafter von Segesser, ‘A Step Forward’); Tina Wüstemann, ‘Anglo-Saxon Trusts and (Swiss) Arbitration: Alternative to Trust Litigation?’ (2012) 18 Trusts and Trustees 341; Tina Wüstemann, ‘Arbitrating Trust Disputes’ in Manuel Arroyo (ed), Arbitration in Switzerland (Kluwer Law International 2013) 1125; Tina Wüstemann, ‘Arbitration of Trust Disputes’ in Christoph Müller (ed), New Developments in International Commercial Arbitration (Schulthess 2007); Tina Wüstemann, ‘Consent and Trust Arbitration, Sports Arbitration: A Coach for Other Players?’ (2015) 41 ASA Special Series 123 (hereinafter ‘Consent and Trust Arbitration’).
8 International Court of Arbitration, ‘ICC Arbitration Clause for Trust Disputes’ (2008) 19 ICC Arbitration Bulletin 9–11; SI Strong, ‘Institutional Approaches to Trust Arbitration: Comparing the AAA, ACTEC, ICC, and DIS Trust Arbitration Regimes’ in SI Strong (ed), Arbitration of Trust Disputes: Issues in National and International Law (Oxford University Press 2016) paras 5.01–5.135. Tina Wüstemann, one of the authors of this chapter, was a member of the ICC Task Force on Trusts and Arbitration in 2008, which produced a model clause and explanatory notes under the auspices of the ICC Commission on Arbitration.
9 Rules of Arbitration of the International Chamber of Commerce (ICC) of 1 January 2014, <www.iccwbo.org/>.
10 One of the authors, Tina Wüstemann, is co-chairing the 2015 Task Force with Sophie Nappert from Three Verulam Buildings, London, whose members first convened in September 2015 in Paris.
11 Trusts Law (Guernsey) 2008, pt II s 63; Paul Buckle, ‘Trust Arbitration in Guernsey’ in SI Strong (ed), Arbitration of Trust Disputes: Issues in National and International Law (Oxford University Press 2016) paras 12.01–12.64.
12 Arbitration Act (Malta) ch 387 s 15A.
13 The Trustee (Amendment) Act (Bahamas) 2011, ss 91A, 91B, and 91C; David Brownbill, ‘Arbitration of Trust Disputes Under The Bahamas Trustee Act 1998’ in SI Strong (ed), Arbitration of Trust Disputes: Issues in National and International Law (Oxford University Press 2016) paras 13.01–13.71.
14 Ariz Rev Stat Ann s 14-10205; Fla Rev Stat 731.401; NH Rev Stat s 564-B:1-111A; Mo Rev Stat s 456.2-205; SD Codified Laws s 55-1-54; David M English, ‘Arbitration and the Uniform Trust Code’ in SI Strong (ed), Arbitration of Trust Disputes: Issues in National and International Law (Oxford University Press 2016) paras 6.01–6.14; Lee-ford Tritt, ‘Legislative Approaches to Trust Arbitration in the United States’ in SI Strong (ed), Arbitration of Trust Disputes: Issues in National and International Law (Oxford University Press 2016) paras 7.01–7.71.
15 This chapter is not intended to be a comprehensive analysis of all the complex questions which arise in the context of trust arbitration and many of the issues covered are necessarily summary in nature. The focus will be on non-commercial (family) trusts.
16 This characterization is today used by most trust practitioners and is derived from the judgment in Alsop Wilkinson v Neary  1 All ER 431. See also Paul Buckle and Carey Olson, ‘Trust Disputes and ADR’ (2008) 14 Trusts and Trustees 651; Huber (n 7) 54–57.
17 Robert Ham, ‘The Thyssen Case: Swiss Law before Bermuda Court’ (1st Annual Zurich Conference on International Trust and Inheritance Law Practice, Zurich, 9 November 2005).
18 See Mark Harper, ‘English Asset Division on Divorce’ in Mark Harper and Dawn Goodmann (eds), International Trust and Divorce Litigation (2nd edn, Jordan 2013) 57–90.
19 Decision of the Swiss Federal Tribunal of 26 April 2012, in the case 5A_259/2010 (Rybolovlev v Rybolovleva). In that case, the Swiss Federal Tribunal rendered its decision within the framework of provisional measures based on a request of Ms Rybolovleva during divorce proceedings to attach the husband’s worldwide assets, including Cyprus trust assets. The divorce proceedings were settled in October 2015 in an undisclosed settlement agreement following the judgment of the court of appeal of Geneva of 11 June 2015. Elena et Dmitry Rybolovlev divorcent à l’amiable, Site de l’agence économique et financière à Gèneve, <www.agefi.com/ageficom/accueil/detail/edition/online/article/les-deux-parties-ont-mis-un-terme-a-toutes-les-procedures-judiciaires-409849.html>.
20 Lindsay Luttermann, ‘Jurisdiction Clauses in Trust Instruments-Creating Certainty or Muddying the Waters?’ (2011) 17 Trusts and Trustees 293.
22 The Hague Trust Convention covers all types of internal trust disputes, including applications for directive and constructive summonses and requests for the replacement of a trustee. Hague Trust Convention (n 2) art 8.
23 Huber (n 7) 3; Nedim Peter Vogt, ‘Trusts und schweizerisches Recht’ (2007) 5 Anwaltsrevue 199.
24 Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters  SR 0.275.12 (hereinafter LC).
25 Private International Law Statute  SR 291 (hereinafter PILS).
26 For external trust disputes, the general rules in the LC (n 24) (Articles 2 and 5) and the PILS (n 25) (Article 2) apply. See also Explanatory Report of the Swiss Federal Council regarding the ratification of the Hague Trust Convention, 2 December 2005, 05.088, 602; Huber (n 7) 72–75, 84–85, 113; Nedim Peter Vogt and Delphine Pannatier Kessler, ‘Switzerland’ in Sara Collins and others (eds), International Trust Disputes (Oxford University Press 2012) para 31.03.
27 Julie Wynne and David Wallace Wilson, ‘The New Lugano II Convention and Swiss Trust Disputes’ (2011) 17 Trusts and Trustees 274.
28 LC (n 24) art 5(6); Wynne and Wilson (n 27) 274.
30 PILS (n 25) art 21(3). For example, beneficiaries may issue proceedings in Switzerland against a Gibraltar trustee if the trust instrument does not specify the place of administration and if the trust is effectively administered in Zurich (eg in the case where a Gibraltar-licensed trust company exclusively operates through Swiss-based personnel who manage on a daily basis the trust assets deposited on a Swiss bank account). Wynne and Wilson (n 27) 275.
31 See para 17.11. A large part of the trust corpus might be deemed located in Switzerland if distributions to the beneficiaries are made from a Swiss bank account. Vogt and Pannatier Kessler (n 26) para 31.04. However, there is no case law indicating how large the part of the trust corpus located in Switzerland must be to establish Swiss jurisdiction.
33 Huber (n 7) 47–137 (discussing in more detail the prerequisites with regard to the jurisdiction of Swiss courts in trust disputes according to Article 149b of the PILS (n 25) and Articles 5(6) and 23(4) of the LC (n 24)).
34 Peter Max Gutzwiller, Schweizerisches Internationales Trustrecht: Commentary (Helbling Lichtenhahn 2007) paras 38–42 at General Introduction. See also Manuel Liatowitsch and Claudia Wehinger, ‘From the Sea to the Mountains: Trust Litigation comes to Switzerland’ (2010) Private Client Practitioner 9; Richard Gassmann, ‘Trust Disputes Before Swiss Courts’ (7th Annual Conference on International Trust and Inheritance Law Practice, Zurich, 4 November 2010) 12.
35 Decision of the Swiss Federal Tribunal of 26 April 2012, in the case 5A_259/2010 (Rybolovlev v Rybolovleva).
36 Tina Wüstemann and Debora Gabriel, ‘Switzerland’ in Mark Harper and others (eds), International Trust and Divorce Litigation (Jordan 2013) 273.
37 The private nature of arbitration does not per se ensure confidentiality. The standard of confidentiality which applies depends on the parties’ agreement, the choice of (institutional) arbitration rules, and the law applicable at the seat of the arbitration.
38 Andrew Vergunst and Lawrence Grabau, ‘Arbitrating Trust Disputes’ (2011) 19 STEP Journal 21; Nedim Peter Vogt and Delphine Pannatier Kessler, ‘Preliminary Comments on Arts 149a–149e’ in Heinrich Honsell and others (eds), Basle Commentary PILS (3rd edn, Helbling Lichtenhahn 2013) para 201.
39 Huber (n 7) 146, n 697.
40 While the parties are generally free to select a set of rules (eg ICC Rules of Arbitration or the Swiss Rules of Arbitration) to govern an arbitration, the law at the seat of arbitration also regulates proceedings to a degree. Nevertheless, party autonomy and procedural flexibility is a cornerstone in international arbitration and prevails in most cases, unlike the rigid set of procedural rules that parties are unable to modify in a proceeding before a domestic court.
41 von Segesser, ‘A Step Forward’ (n 7) 39.
42 Toby Graham and Joanna Poole, ‘Issues of Principle’ (2011) STEP Journal 25; Ian Meakin, ‘Arbitrary Agreement’ The Lawyer (London, 10 November 2008), <www.thelawyer.com/arbitrary-agreement/135555.article>; Lawrence Cohen, ‘Why Trust Matters Should be Arbitrated’ (3rd Annual Conference on International Trust and Inheritance Law Practice, Zurich, April 2007) para 4.
43 Weissfisch v Julius  EWCA Civ 218 (refusing to enjoin an English arbitrator in an ad hoc proceeding seated in Geneva from continuing with the arbitration or deciding an issue as to his jurisdiction because the correct forum for such decision was Switzerland).
44 Sébastien Ruche, ‘Le besoin de consolider une pratique bien établie’ (2012) L’Agefi Quotidien de l’agence économique et financière à Genève 1. The Swiss SATC/STEP Conference in 2015, ‘The Trust Re-Visited’, considered how in thirty years since the conclusion of the Hague Trust Convention the trust has become more widely accepted and trust service providers have greater opportunities in many countries, including Switzerland.
45 PILS (n 25) art 176; Bernhard Berger and Franz Kellerhals, International and Domestic Arbitration in Switzerland (3rd edn, Stämpfli 2015) para 99.
46 PILS (n 25) art 187. Article 7 of the Hague Trust Convention sets forth the ‘closest connection test’, which serves as a guideline in cases where there is no explicit choice of law. Peter Max Gutzwiller, ‘Trusts für die Schweiz’ (2007) Anwaltsrevue 156.
47 See paras 17.57–17.60. The majority of trust disputes can be arbitrated in a Swiss arbitration. Uncertainties remain with regard to requests for the replacement of a trustee and applications for directions. Delphine Pannatier Kessler, Le droit de suite et sa reconnaissance en Suisse selon la Convention de La Hayes sur les trusts (Schulthess 2011) 345–46; Wüstemann, ‘Arbitration of Trust Disputes’ (n 7) 49–51.
49 PILS (n 25) art 178(1).
52 Cohen (n 42) para 10; Meakin (n 42).
54 Such approach is in line with the principle of the severability of the arbitration agreement as recognized in international arbitration practice. See also PILS (n 25) art 178(3).
55 It is debated whether arbitration clauses could be retrospectively inserted into existing trusts under a so-called power of amendment. Cohen (n 42).
56 Berger and Kellerhals (n 45) para 420.
57 The parties cannot refer the form of the arbitration agreement to a foreign law. Dieter Gränicher, ‘Art. 178’ in Heinrich Honsell and others (eds), Basle Commentary PILS (3rd edn, Helbling Lichtenhahn 2013) para 6.
58 PILS (n 25) art 178(1) (conforming to the approach used in Article 5 of the PILS).
59 Gränicher (n 57) para 15. According to various commentators, the lack of a signature should be assessed solely with respect to the substantive validity of the arbitration agreement. However, the lack of a signature can be an indication that the parties have failed to reach a mutual agreement on the application of its terms, even though the arbitration clause satisfies the form requirement. Berger and Kellerhals (n 45) para 423.
60 Gränicher (n 57) para 17. See also Berger and Kellerhals (n 45) paras 422–26 (supporting the position that, in light of Article 178(1) of the PILS (n 25), it is sufficient that an arbitration agreement is drafted by one party and simply accepted orally or tacitly by the other party).
61 While the Swiss Federal Tribunal has not yet ruled explicitly on the necessity of both parties’ adhering to the formal prerequisites in direct application of Article 178(1) of the PILS (n 25), the tribunal did take it for granted in a recent case that both parties must fulfil the formal requirements. DFT 121 III 38 para 2 (concerning the formal requirements of the New York Convention, which the court held to be identical to those of the PILS).
62 Huber (n 7) 202–15 (discussing the different views that have been expressed under Swiss law in regard to the formal validity of the arbitration agreement in the context of trust arbitration).
64 Edgar Paltzer and Patrick Schmutz, ‘Switzerland’ in Alon Kaplan (ed), Trusts in Prime Jurisdictions (3rd edn, Kluwer 2010) 377, 379.
66 Convention on the Recognition and Enforcement of Foreign Arbitral Awards  SR 0.277.12 (hereinafter New York Convention). Some commentators do not find the form requirements of the New York Convention unduly problematic. Sarah Ganz, ‘Enforcement of Foreign Arbitral Awards Arising from an Internal Trust Arbitration: Issues Under the New York Convention’ in SI Strong (ed), Arbitration of Trust Disputes: Issues in National and International Law (Oxford University Press 2016) paras 21.01–21.92; Margaret L Moses, ‘International Enforcement of an Arbitration Provision in A Trust: Questions Involving the New York Convention’ in SI Strong (ed), Arbitration of Trust Disputes: Issues in National and International Law (Oxford University Press 2016) paras 20.01–20.76.
69 Berger and Kellerhals (n 45) para 392.
70 This liberal solution has the further advantage that actions to the judicial authority to set aside the arbitration award due to invalidity of the arbitration agreement, which are often lodged purely as a delaying tactic, are limited. Explanatory Report of the Swiss Federal Council on the PILS, BBl 1983 I 462. However, difficulties may arise later at the recognition and enforcement stage. See paras 17.61–17.63.
71 Berger and Kellerhals (n 45) para 394.
72 Swiss Code of Obligations of 30 March  SR 220. See also Berger and Kellerhals (n 45) para 397.
Lloyd and Pratt (n 7
) 18–19. Lawrence Cohen and Marcus Staff believe that:
Cohen and Staff (n 5
76 Thus, for example, it is possible to extend the arbitration agreement to ‘non-signatories’, eg a parent company of a signatory that is significantly involved in both the negotiation and application of a contract containing an arbitration clause. Berger and Kellerhals (n 45) para 563.
77 von Segesser, ‘A Step Forward’ (n 7) 43; Wüstemann, ‘Consent and Trust Arbitration’ (n 7) 131 et seq.
78 Decision of the Swiss Federal Tribunal 4P.172/2006 of 22 March 2007 (Cañas v ATP Tour), DFT 133 III 235.
79 ibid para 22.214.171.124, as translated by Paolo Michele Patocchi and Matthias Scherer, The Swiss International Arbitration Law Reports (Juris 2007) 65–99. See also Philippe Bärtsch, ‘“Consent” in Sports Arbitration: Which Lessons for Arbitrations Based on Clauses in Bylaws of Corporations, Associations, etc.?’ (2015) 41 ASA Special Series 95–122.
81 While commentators debate the extent to which heirs can be bound by an arbitration clause in a last will, the majority of Swiss writers agrees that a testator can make a bequest to an appointed heir or legatee subject to the condition that the heir or legatee consents to arbitration in case of a dispute. Berger and Kellerhals (n 45) paras 470–73; Gränicher (n 57) paras 63–64; Hansjoerg Kistler, Schiedsabreden in Testamenten und Erbverträgen (Schulthess 1999) 25–30; Hans Rainer Künzle, ‘Schiedsgerichte in Erbsachen’ (Schulthess 2011) 6; Marc André Mauerhofer, ‘Schiedsgerichtliche Zuständigkeit in Erbstreitigkeiten aufgrund Parteivereinbarung und erblasserischer Anordung’ (2006) Zeitschrift des Bernischen Juristenvereins, 375–401; Sibylle Pestalozzi-Früh, ‘Testamentarische Schiedsklauseln – ein risikoreiches Unterfangen’ (2011) Successio 170–73 (summarizing the various positions of Swiss authors with regard to arbitration clauses in last wills).
82 Arbitration clauses in foundations are considered as binding upon the beneficiaries. Gränicher (n 57) para 64.
83 Berger and Kellerhals (n 45) para 471; Pannatier Kessler (n 47) 346–47; Mauerhofer (n 81) 390; Pestalozzi-Früh (n 81) 174 (discussing the different views expressed on this subject).
84 Swiss Civil Code  SR 210 (hereinafter CC) art 482; Gränicher (n 57) para 64; Mauerhofer (n 81) 391. In the view of the authors, a recent decision of the Swiss Federal Tribunal providing for stricter requirements as regards the binding of non-signatories to an arbitration agreement is not applicable in the present case as it deals with the question whether and under what circumstances the arbitration agreement included in the principal contract also extends to the third parties which are not parties to the arbitration agreement in the first instance, which is not a situation that is similar to a beneficiary named in a trust deed. Pierre Lalive, ‘1. Zivilabteilung, Urteil vom 19 août 2008, 4A.128/2008, X Ltd g Y SpA’ (2008) 26 ASA Bulletin 784–87 (discussing DFT 134 III 565 para 3, rendered 19 August 2008).
85 von Segesser, ‘Arbitrability’ (n 7) 26. Some authors even argue that a testator cannot impose an arbitration clause on statutory heirs. Gränicher (n 57) para 64.
86 Hans Rainer Künzle, ‘Aktuelle Praxis der Willensvollstreckung (2009–2010)’ (2010) Successio 289; Pestalozzi-Früh (n 81) 174; von Segesser, ‘Arbitrability’ (n 7) 30.
87 Graham and Poole (n 42) 27 (acknowledging that such forfeiture clauses would ‘obviously significantly reduce the likelihood of a beneficiary seeking to resist the arbitration clause’); Vergunst and Grabau (n 38) 22.
88 PILS (n 25) art 178(2); Mauerhofer (n 81) 387–88.
90 PILS (n 25) art 178(2).
91 Third party disputes can be submitted to arbitration just like any other commercial agreement. Weissfisch v Julius  EWCA Civ 218. See also para 17.09.
92 Brownbill, ‘What Might Be Possible?’ (n 7) 19–20; David Hayton, ‘Non-judicial resolution of trust issues with particular reference to the problem of incapacitated, unborn or unascertained beneficiaries’ (Transcontinental Trust Conference, Geneva, 28/29 June 1999).
94 Hague Trust Convention (n 2) art 15(1); PILS (n 25) art 35; Gutzwiller (n 34) paras 15, 22.
95 CC (n 84) art 421(8); Reinhold Schaetzle, Das Kind im Zivilprozess (ADAG 1982) 115–16.
96 PILS (n 25) art 183(2) (providing for interim measures); ICC Rules of Arbitration, art 28(2). See also von Segesser, ‘A Step Forward’ (n 7) 44.
97 See also von Segesser, ‘A Step Forward’ (n 7) 44 (suggesting that trust laws should expressly set out a mechanism for appointing such representatives in arbitral proceedings, whether that mechanism involves the arbitral tribunal or not, and noting that it would be advisable for all arbitration laws, especially those in popular seats like Switzerland, to specify that appointments of representatives pursuant to the applicable trust law are fully acceptable).
98 Vergunst and Grabau (n 38) 22 (noting that while most jurisdictions have well-established procedural rules in place for traditional court proceedings, it is sometimes unclear whether those rules extend to arbitration clauses).
99 Cohen and Staff (n 5) 222–23; Lloyd and Pratt (n 7) 19.
100 von Segesser, ‘Arbitration and Mediation’ (n 7) 10–11.
101 Paul Buckle, ‘Trust Disputes and ADR’ (2008) 14 Trusts and Trustees 656.
102 See Trustee (Amendment) Act (Bahamas) 2011 (modifying chapter 176 of the Trustee Act). Section 91B(3) of the 2011 Act grants arbitral tribunals the same powers as domestic courts to appoint representatives for unborn, minor, or incapacitated beneficiaries.
103 Cohen and Staff (n 5) 222; Lloyd and Pratt (n 7) 19.
104 See also SI Strong, ‘Mandatory Arbitration of Internal Trust Disputes: Improving Arbitrability and Enforceability Through Proper Procedural Choices’ (2012) 28 Arbitration International 591, 637–49 (suggesting that the German Institution of Arbitration (DIS) Supplementary Rules may be taken as an inspiration for a new set of internal trust arbitration rules, given that arbitration of internal shareholder disputes as well as arbitration of internal trust disputes can involve large numbers of parties).
105 ICC Rules of Arbitration, arts 7–8; Swiss Rules of Arbitration, art 8.
106 PILS (n 25) art 177(1) (stating in regard to arbitrability, ‘[a]ny dispute involving an economic interest may be the subject of arbitration’).
108 Wüstemann, ‘Arbitration of Trust Disputes’ (n 7) 49.
109 von Segesser, ‘A Step Forward’ (n 7) 45 (noting that preserving the exclusive jurisdiction of the courts was the key argument used by opponents of commercial arbitration until the 1960s).
110 The majority of trust disputes can be arbitrated in a Swiss arbitration. Uncertainties remain with regard to requests for the replacement of a trustee and applications for directions. Tetiana Bersheda, ‘Is Arbitration-Friendly Switzerland also Trust-Arbitration-Friendly?’ (2012) 18 Trust and Trustees 356; Huber (n 7) 178–91; Pannatier Kessler (n 47) 345–46; Wüstemann, ‘Arbitration of Trust Disputes’ (n 7) 49–51. See also von Segesser, ‘A Step Forward’ (n 7) 45 (noting that even a dispute about the information rights of a beneficiary should be arbitrable, as such information is often sought as a preliminary remedy to prepare a possible claim or to exercise control or supervision over the trust, which in the end also has an economic value).
111 This is the approach adopted in the AAA Arbitration Rules on Wills and Trusts, which provide that questions regarding the capacity of the settlor or attempts to remove a trustee are not arbitrable. AAA Arbitration Rules on Wills and Trusts, <www.adr.org>.
113 Convention on the Execution of Foreign Arbitral Awards of 1927 (Geneva Convention), <http://interarb.com/vl/g_co1927>. An arbitral award will in principle be made under the Geneva Convention if it is made pursuant to an arbitration agreement in the territory of a state which is a party to the Geneva Convention but not the New York Convention. Vergunst and Grabau (n 38) 22.
115 See Berger and Kellerhals (n 45) paras 429, 2059.
116 UNCITRAL formally recognized a more flexible approach in a recommendation on the interpretation of Article II(1-2), encouraging a relaxation of the literal application of the term ‘agreement in writing’. Recommendation Regarding the Interpretation of Article II, Paragraph 2, and Article VII, Paragraph 1, of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, UN Doc A/6/17 (7 July 2006). See also SI Strong, ‘Arbitration of Trust Disputes: Two Bodies of Law Collide’ (2012) 45 Vanderbilt Journal of Transnational Law 1157, 1215–16; von Segesser, ‘A Step Forward’ (n 7) 43.
117 New York Convention (n 66) art VII(1); Berger and Kellerhals (n 45) para 428, n203; von Segesser, ‘Arbitration and Mediation’ (n 7) 29. See also Note by the Secretariat, UNCITRAL, Working Group II (Arbitration), Settlement of Commercial Disputes: Preparation of Uniform Provisions on Written Form for Arbitration Agreements, UN Doc A/CN.9/WG.II/WP.139 (14 December 2005) (discussing how best to address the written form requirement under UNCITRAL Model Law on International Commercial Arbitration and Articles II(2) and VII(1) of the New York Convention, in particular in cases involving the absence of a writing); Report of the Working Group on Arbitration and Conciliation on the Work of its Forty-Fourth Session, UN Doc A/CN.9/592 (27 February 2006).
118 New York Convention (n 66) art V(2)(a).