Policy Over Doctrine: A Brief History of US Trust Law

US trust law is unique because whereas in English law the settlor drops out of the picture once he has created the trust, in the US the settlor’s intentions remain paramount. This fundamental difference in turn permits the recognition of spendthrift trusts, whereby the beneficial interest cannot be alienated, in the US whereas in England such trusts are generally invalid. Similarly, whereas in English law the beneficiaries of absolute trusts, and on occasion discretionary trusts, can collectively implode the trust by forcing the trustee to convey the trust fund to them via a Saunders v Vautier application, this is generally not possible in the US. It is suggested that this key difference results from the fact that US law is, at heart, policy-based rather than doctrinal whereas the opposite is true for English law

Trust arbitration: 99 problems and 99 solutions

Abstract Although in recent years there has been considerable interest in arbitrating internal trust disputes with a large body of literature produced on the subject, as well as statutory reform to permit it in several jurisdictions, it remains the fact that trust arbitration is still relatively uncommon. This is likely due to the complex problems of cross-border testamentary, trust, arbitration and human rights law. However, the aim of this article is to demonstrate that these difficulties are often exaggerated and can be solved with proper drafting and a little creativity.</jats:p

Arbitration and the Right to Have Your Day in Court: Meeting Again at the Turning of the Tide

This article aims to explore court decisions which have made arbitration less attractive to businesses—both those which have refused to enforce arbitration clauses and paradoxically and those which have enforced arbitration clauses—as well as to provide an overview of businesses\u27 reactions to those decisions and make some predictions about the future direction of travel. To that end, this article will be divided into three main parts. The first will explore the decision of New Prime Inc. as well as the various federal appellate decisions that have applied it. The second will explore the challenges posed by mass arbitration, and the third will discuss examples of several major companies’ dissatisfaction with arbitration, or at least with their current arbitration schemes, in recent years