III Trust Arbitration as a Matter of National Law, 9 Donative Trusts and the United States Federal Arbitration Act

Subject(s):

Arbitrability — Arbitral agreements — Arbitral tribunals — Arbitrators

This chapter considers whether and to what extent internal trust arbitration falls under the auspices the Federal Arbitration Act (FAA). It begins by comparing the evolution of contractual arbitration under the FAA to trust arbitration under state law. It then explains why these parallel developments are on a collision course. Specifically, it argues that some arbitration provisions in trusts trigger section 2 of the FAA because they arise from contract-like instruments that affect commerce and because the parties’ conduct gives rise to an implicit agreement to arbitrate. Finally, the chapter addresses two thorny problems that are likely to emerge in trust arbitration under the FAA: how to handle the in rem nature of some trust matters and the role of delegation clauses in trusts.