Arbitration of trust disputes in London

Institutional arbitration of trust disputes in England and Wales is almost unknown, because the interests of unborn/unascertained beneficiaries cannot be reliably bound by an arbitration agreement when the trust instrument is drafted. Therefore, English will/trusts and settlements do not usually contain an arbitration clause.

CPR, r.26.4(1) provides, ‘A party may, when filing the completed directions questionnaire, make a written request for the proceedings to be stayed while the parties try to settle the case by alternative dispute resolution or other means.’

Section 6 of the Arbitration Act 1996 [‘AA 1996’] defines an ‘arbitration agreement’ widely as meaning any ‘agreement’ , i.e. whenever made, ‘to submit to arbitration present or future disputes (whether they are contractual or not).’ 

In a trust dispute, where the instrument does not contain an arbitration clause, does an English Court have the jurisdiction to grant a stay under CPR, r.26.4(1) where e.g. at the first CMC, an oral application is made by consent, for a stay for arbitration in London, and a litigation friend consents to act (e.g. for a minor) with the approval of the Court, following the making of submissions about why this is appropriate? 

In other words, can:

(i)              the parties agree to an ad hoc arbitration; and

(ii)              the court, then stay proceedings, so that the ad hoc arbitration can be convened?

The trustees would need to have the power to agree to arbitration. 

A theoretical obstacle is the extent to which the supervisory jurisdiction of the Court over trust administration cannot be ousted. 

However, logically, the jurisdiction of the Court cannot be ousted if it grants an order by consent, because the Court is acting in the exercise of its jurisdiction, and note the default procedural rules contained in sections 15 to 29 and 33 to 41 of the AA 1996

The Court could make it a term of the Order that the arbitration decision is subject to a right of appeal to the Court (see sections 67 to 69 of the AA 1996), i.e. so that:

(i)     the application for the Order cannot be, and therefore is not, in itself, an attempt to oust the jurisdiction of the Court, which is capable of depriving the Court of its power to grant the Order; and

(ii)     notwithstanding that the application is voluntary (i.e. where each beneficiary is an adult and has full capacity),the convention right provided for under Article 6.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms: (a) is not engaged; (b) cannot be infringed; and (c) is therefore satisfied.

‘In England and Wales, there is case law to the effect that a settlor or testator cannot validly exclude the jurisdiction of the Court from determining all issues which arise in the administration of a trust. [In Re Wynn [1952]] … Danckwerts J [had] occasion … to consider the juridical basis of allowing arbitration in a contractual context, stating:

“[o]ne’s mind naturally turns to provisions which are often found in contracts providing for the decision of disputes by an arbitrator, the common arbitration clause. After considerable doubt, the position of an arbitration clause appears to have been settled by Scott v Avery as being valid, provided that it merely requires as a condition precedent to the bringing of legal proceedings upon the contract that there shall have been an arbitration fixing the amounts to which the parties are entitled: and, on the other hand, that anything which goes beyond that, and attempts to deprive the parties of their right to bring an action is unlawful as an attempt to oust the jurisdiction of the Court.”

The principle is that the Court must be allowed to retain ultimate control, nowadays represented by the right of appeal on a point of law. In the context of a will it therefore appears to be settled that it is not possible to make a decision of the trustees final and binding. In the process of declaring the clause in In re Wynn to be void, Danckwerts J followed In re Raven, a decision of Warrington J. … As for arbitration clauses, the clear implication of both authorities is that such clauses are safe from invalidity for the very reason that the arbitrator’s decision is not final. In the ordinary course of an arbitration pursuant to a statute, there is a right of appeal, even if a limited one, and this prevents an arbitration clause from being void as an ouster of the Court’s jurisdiction. However, the corollary is that if an arbitration clause does not have an explicit or implicit right of appeal, then there remains a real danger that the clause does amount to an invalid ouster of the jurisdiction. The conclusion for present purposes is that the arbitration of trust disputes in England and Wales would need legislation.’ (‘Arbitration of Trusts Disputes – Issues in National and International Law’ (2016) edited by S.I.Strong, paragraphs 10.56 – 10.67, by Mark Herbert QC).

Why though, is legislation necessary if either:

(i)     an arbitration clause in a trust instrument expressly requires:

(a)    the consent of all beneficiaries; and

(b)    the approval of the Court where there are any: unborn; minor; or incapacitated beneficiaries, who in the exercise of it’s ‘supervisory jurisdiction’ can sanction the bringing of arbitration proceedings, supported by a stay, on terms which provide that any party is at liberty to apply to the Court to review the arbitrator’s decision, and then allow the decision to be appealed under s.69 AA 1996; or

(ii)     after a dispute has arisen, all trustees and beneficiaries agree to an ad hoc arbitration, and if as in (i) above, an application is then made to the Court for:

                  (a)    directions; and

                  (b)    if necessary a stay,

the Court grants its blessing, whilst preserving its supervisory jurisdiction?

In other words, can the Court grant an order by consent, which enables the parties to resolve their dispute by arbitration, i.e. because there is no prohibition in the circumstances outlined above?

I cannot see why not.

For a full discussion, please refer to Chapter 12 (ADR and settlement) of my book, the ‘Contentious Trusts Handbook’ (2020), published by the Law Society: Wildy & Sons Ltd — The World’s Legal Bookshop : Tax-Efficient Wills Simplified 2013/2014

To view my recent article ‘Judicial Early Neutral Evaluation and the New Normal’ published by Trusts & Trustees (Oxford University Press): Trusts & Trustees | Oxford Academic (oup.com) please visit the ‘Publications’ page at www.ihtbar.com

In the summer, I am planning to write an in-depth article about duties and powers of executors and trustees in relation to property and investments, which will be co-authored with a leading trust law academic at Cambridge University.

Deaccessioning of art & antiquities by a museum in breach of fiduciary duty

With reduced funding, some museums have turned to ‘deaccessioning’ the removal of an object from a museum collection with the intent to sell it.

‘Trustees of museums, like trustees of other public and charitable organizations, are subject to the legal obligations imposed upon fiduciaries.This proposition has, however, rarely been recognized either by museum trustees in their conduct of museum affairs, or indeed, by the legal system itself. As a result, museums have often been operated by their curatorial staffs and boards of trustees with little external supervision. Particularly in such areas as self-dealing, conflicts of interest and failure to observe donors’ directives.’ ‘The Fiduciary Duties of Museum Trustees’, by Patty Gerstenblith, Columbia-VLA Art and the Law (1983).

What claims may arise from deaccessioning in breach of fiduciary duty? see, ‘Art Deaccessions and the Limits of Fiduciary Duty’, by Sue Chen, Art Deaccessions and the Limits of Fiduciary Duty (duke.edu)

Art deaccessions prompt lawsuits against museums, and some commentators advocate using the stricter trust standard of care, instead of the prevailing corporate standard (business judgment rule), to evaluate the conduct of non-profit museum boards. This Article explores the consequences of adopting the trust standard by applying it to previously unavailable deaccession policies of prominent art museums. It finds that so long as museum boards adhere to these policies, their decisions would satisfy the trust standard. This outcome illustrates an important limitation of fiduciary law: the trust standard evaluates procedural care but cannot assess deaccessions on their merits. Yet this limitation, far from undercutting the trust rule, balances judicial review with protecting boards’ management discretion. This article ventures beyond formalist analysis of fiduciary duty and examines the non-legal, substantive rules governing art deaccessions. It argues that complemented by non-legal rules, the trust standard provides the best framework for adjudicating deaccession lawsuits because it ensures judicial scrutiny of deaccession procedures while leaving appraisal of deaccessions’ merits to museum professionals and the public they serve.’

The commercial settlement (i.e. through mediation) of a breach of fiduciary duty dispute resulting from the de-accessioning and sale of art and antiquities by a Museum, is therefore inextricably linked with established norms and standards of behaviour by Museum trustees.

See also Museum ethics: when the law plays catch up’

Posted on: March 23, 2021 by Alexander Herman:

Museum ethics: when the law plays catch up | Institute of Art and Law (ial.uk.com)

I am developing the negotiation and mediation of Art and Cultural Heritage Disputes as a niche practice area, and am a member of the Institute of Art & Law in London, where I am studying for a Diploma in Art Law. I plan to qualify as a mediator in 2024. I can then be appointed as an expert co-mediator to provide technical support to mediators on law, best practice, and ethics.

My book, the ‘Contentious Trusts Handbook’ contains a practice note contributed by the distinguished Art Historian, Pandora Mather Lees (www.artonsuperyachts.com), entitled, ‘Art & Heritage Assets – Duties of Trustees’, and I am currently researching substantive aspects of art and antiquities law for a new book I am planning to write for publication in 2023 provisionally entitled,

‘Fiduciary Theory of Art And Cultural Heritage’.

To view the current outline of the book please vists the ‘Art & Antiquities Disputes’ page at www.ihtbar.com.

Use of British soft power to protect Cultural Heritage in a conflict zone? – UK Review of Security, Defence, Development and Foreign Policy (March 2021)

State responsibility for intentional destruction of cultural heritage may also be conceived in terms of responsibility to protect (“R2P”) such heritage. R2P consists in the responsibility of each state to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity, while the international community has the responsibility to help states to protect populations from such crimes. The three pillars of R2P – as specified by the UN Secretary General – are the following:

1)     each state has the responsibility to protect its populations from said crimes;

2)     the international community has the responsibility to assist states in fulfilling their R2P;

3)     when a state manifestly fails to fulfil its own R2P, the international community has a responsibility to take timely and decisive action through peaceful diplomatic and humanitarian means and, if that fails, through other more forceful means, including the use of military force.

Since intentional destruction of cultural heritage amounts to a war crime and a crime against humanity, it is straightforwardly subsumed within the scope of R2P. As regards the modalities through which R2P may be realized in concrete terms, it’s third pillar clearly shows that the United Nations, regional organizations, and even single states may take action to protect populations from intentional destruction of cultural heritagein territories where the territorial state manifestly fails to comply with its own R2P. In this respect, the denotation of international destruction of cultural heritage as an offence against humanity as a whole makes the international obligation to prevent and avoid such destruction an obligation erga omnes, with respect to which any state other than the one directly injured by a violation may take lawful measures to ensure that cessation of the breach and reparation in favour of the injured state or other victims of the breach, pursuant to the rule enshrined by Article 54 of the International Law Commission’s Articles on Responsibility of States for Intentionally Wrongful Acts. Among the possible measures to be taken in this respect, even recourse to military force would be possible, although only as a last resort and taking the relevant decision with the utmost caution and preferably with the authorization and under the guidance of the UNSC, acting pursuant to Chapter VII of the UN Charter. This conclusion is corroborated by the characterization of intentional destruction of cultural heritage as a threat to peace.’

[The Oxford Handbook of International Cultural Heritage Law, Chapter 4, Intentional Destruction of Cultural Heritage, by Federico Lenzerini (2020), at pages 97 to 98].

Global Britain in a competitive age – The Integrated Review of Security, Defence, Development and Foreign Policy(March 2021): Global Britain in a Competitive Age: the Integrated Review of Security, Defence, Development and Foreign Policy – GOV.UK (www.gov.uk) states:

‘The source of much of the UK’s soft power lies beyond the ownership of government – an independence from state direction that is essential to its influence. The Government can use its own assets, such as the diplomatic network, aid spending and the armed forces, to help create goodwill towards the UK – for example, through support to disaster relief or through our international work to protect cultural heritage in conflict settings.’

In any conflict, the humanitarian aim of Cultural Heritage protection always competes with military operations. Since there is no international authority responsible for defining: (i) each country’s cultural property; and (ii) the case of ‘military necessity’ / ’loss of immunity’, on the ground ‘it [is] difficult to separate military operations from cultural property under protection.’ [‘Legal Changes In The Regime Of The Protection Of Cultural Property In Armed Conflict’, Prof. Dr . Sabine von Schorlemer, Art Antiquity And Law, Vol IX, Issue 1, March 2004, p.43 at p.76].

Does an opportunity exist for Britain to use its diplomatic, military, and academic expertise and networks, to facilitate the development of an international code of ethics for the protection of Cultural Heritage in future conflicts around the globe?

The aim would be to develop a code that strikes a balance between:

(a) Cultural Heritage protection; and

(b) military interests.

The development, agreement, and practical implementation (e.g. through military training manuals) would require the ‘round-table’ expert involvement of: representatives of states; military officials; academics; UNESCO; the International Committee of the Red Cross; and NGO’s.

The ambition would be to develop clear norms of behaviour and standards, that are capable of practical and universal implementation on the ground by armed forces in a conflict zone.

The UNESCO ‘Protection Of Cultural Property Military Manual’ (2016) highlights the strategic importance of this global humanitarian challenge:

‘Over the past few decades, culture has moved to the frontline of war, both as collateral damage and as a target for belligerents who use its destruction to foster violence, hatred and vengeance. This destruction strikes at societies over the long term, weakening the foundations of peace and hindering reconciliation when hostilities end. Recent conflicts in Mali, Libya, Yemen, Iraq and Syria have demonstrated that the protection of heritage is inseparable from the protection of human lives. The destruction of heritage has become an integral part of a global strategy of cultural cleansing which seeks to eliminate all forms of diversity. In this context, military forces need to adapt their tools, behaviours and skills to take into account the protection of heritage as an integral part of sustainable strategies to build peace and security. Over the last seven decades, UNESCO has elaborated standard-setting instruments to help Member States tackle these issues. As the first international agreement of universal scope focusing exclusively on the protection of cultural property in armed conflict, the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict has made a tremendous contribution to the protection of cultural heritage and has inspired subsequent treaties aimed at preserving such heritage. Following the conflicts of the 1990s, the Convention was strengthened with the adoption in March 1999 of its Second Protocol, which reinforces the protection afforded to cultural property in armed conflict, notably through new mechanisms for its implementation on the ground. This has been complemented by several other instruments, notably the 1970 UNESCO Convention on the Illicit Import, Export and Transfer of Ownership of Cultural Property and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, as well as the 1972 UNESCO World Heritage Convention. Most recently, in 2015, UNESCO Member States adopted a fully-fledged strategy for the reinforcement of UNESCO’s action for the protection of culture. The examples of the rebuilding of the mausoleums in Timbuktu, Mali, destroyed by violent extremists, the training of military personnel for United Nations peacekeeping operations (MINUSMA) and the recent conviction of Ahmad Al Faqi Al Mahdi for war crimes by the International Criminal Court all attest to UNESCO’s determination to take this new strategy forward. Conventions and other legal instruments are necessary, but they are not enough to tackle increasingly complex situations on the ground. Just as culture is on the frontline of conflicts, it should be on the frontline of peace. To succeed, we need to broaden and rethink traditional approaches to protecting heritage. We need to connect the dots between the cultural, security and humanitarian aspects, while fully respecting the mandate and prerogatives of each actor. Military forces must pay particular attention and be capable of ensuring the protection of heritage in difficult circumstances. This is the aim of the present manual, namely to outline the practical implementation of the 1954 Hague Convention and its Second Protocol so as to enable Member States, in cooperation with UNESCO, to xiv include in their military directives guidelines and instructions on the protection of cultural property. All this should be viewed not as an additional burden on armed forces but as a means to achieve and consolidate long-term security objectives, in particular social cohesion and reconciliation.’

I am developing the negotiation, mediation, arbitration and diplomatic dispute settlement of Art and Cultural Heritage Disputes as a niche practice area, and am a member of the Institute of Art & Law in London, where I am studying for a Diploma in Art Law. I plan to qualify as a mediator in 2024. I can then be appointed as an expert co-mediator to provide technical support to mediators on law, best practice, and ethics.

My book, the ‘Contentious Trusts Handbook’ contains a practice note contributed by the distinguished Art Historian, Pandora Mather Lees (www.artonsuperyachts.com), entitled, ‘Art & Heritage Assets – Duties of Trustees’, and I am currently researching substantive aspects of art and antiquities law for a new book I am planning to write for publication in 2023 provisionally entitled,

‘Fiduciary Theory of Art And Cultural Heritage’.

To view the current outline of the book please vists the ‘Art & Antiquities Disputes’ page at www.ihtbar.com.

The state as a fiduciary?

Hobbes’s insight in ‘Leviathan’ (1651), to the collective action problem in the state of nature, was to empower some entity, i.e. the sovereign state, to make decisions for the group. However, by ‘[e]mpowering the state to override individual autonomy – which inevitably entails delegating powers of discretion to elites to carry out the task of governing – leaves the people subject to that power and discretion vulnerable to its abuse. … [E.G. through nepotism in awarding public contracts].

Conceiving of state authority in fiduciary terms has a long historical pedigree, dating back at least to Plato, Cicero, and Locke. …

Evan Fox-Decent [in his book ‘Sovereignty’s promise: The State as fiduciary’ (2011)] offers the most encompassing account of the state as fiduciary. He argues that the state, as a sovereign entity, is a fiduciary for “each person subject to its power and authority”. He derives this fiduciary relationship not from any contractual delegation of authority, but rather from Kant’s example of the obligations that a parent owes to a child. Just as children are subject to their parents’ discretionary decisions and incapable of either looking out for themselves or consenting to such an arrangement, the people are subject to the state’s administrative power and incapable of exercising state power on their own. According to Fox-Decent, the state’s fiduciary obligation to the people thus rests on trust, not consent. To fulfil that trust, the state must exercise its powers over it subjects for their benefit, not arbitrarily or for the aggrandisement of the ruling class. It must, in short, create a legal order that is governed by the rule of law and treat subjects fairly and reasonably. And those subjects owe a corresponding duty to obey the commands of the state that fulfils its fiduciary obligations. … Fox-Decent and Evan Criddle [in their book ‘Fiduciaries of Humanity: How International law Constitutes Authority’] have argued, that states may even have duties to other people who are not its subjects, including, for example, indigenous peoples within its borders who have not surrendered their own sovereignty, the subjects of other states, and future generations.’ [Extract from the Fiduciary Law Handbook, Chapter 17 ‘Fiduciary principles and the state’ by Theodore Rave].

Therefore,these duties could extend to protecting the environment, e.g. the Amazon Rainforest.

Do these duties need to be placed upon a statutory footing?

The relationship between the ancient idea of ‘Fiduciary Government’ and the existence of fiduciary duties owed by states in relation to cultural heritage, based upon a jus cogens theory, is a subject I am researching for my new book the ‘Fiduciary Theory of Art and Cultural Heritage’, see the ‘Art & Cultural Heritage Disputes’ page at www.ihtbar.com.

The art of exposing innuendo

How can you demonstrate that a sophisticated person is combining the techniques of:

(i)     lack of awareness, e.g. to persuade the listener that they had no knowledge of a state of affairs, or were an innocent victim of unforeseen circumstances outside their knowledge and control;

(ii)    unconscious bias, by triggering an emotional response to switch off the listeners’ critical thinking faculties, e.g. by pressing a ‘red-button’ designed to make the listener relate what is being said to their own subjective experience, i.e. to lend credibility to the narrative by proxy, because what the witness says fits with the listener’s worldview and personal beliefs;

(iii) innuendo; and

(iv) suggestion,

to plant a false impression in the mind of the listener about the witness’ actual knowledge, understanding, beliefs, intentions, and behaviour?

In other words, how can you prove that it is more probable than not, that this person is both: (a) acting (i.e. by putting on a face and manner/demeanor); and (b) manipulating facts, in order to present falsehoods as truth?

The answer is to test rigor, in order to challenge the credibility of the facts and the witness.

In preparing for cross-examination can advocates learn from academic research methodologies?

An insightful and instructive article about qualitative research methodologies is,

‘Rigor or Reliability and Validity in Qualitative Research: Perspectives, Strategies, Reconceptualization, and Recommendations’ by Brigite S Cypress: Rigor or Reliability and Validity in Qualitative Research: P… : Dimensions of Critical Care Nursing (lww.com)

See also ‘What is the RED Model of Critical Thinking?’: LinkClick.aspx (af.edu)

My new book

As a SCMA Accredited Mediation Advocate, I am developing mediation of Art and Cultural Heritage Disputes as a niche practice area, and am a member of the Institute of Art & Law in London, where I am studying for a Diploma in Art Law. In 2024 I plan to qualify as both a mediator and an arbitrator.

My book, the ‘Contentious Trusts Handbook’ contains a practice note contributed by the distinguished Art Historian, Pandora Mather Lees (www.artonsuperyachts.com), entitled, ‘Art & Heritage Assets – Duties of Trustees’, and I am currently researching substantive aspects of art and antiquities law for a new book I am planning to write for publication in 2023 provisionally entitled,

‘Fiduciary Theory of Art And Cultural Heritage’.

The current outline of the book appears on the ‘Art & Antiquities Disputes’ page at www.ihtbar.com.