Article on Arbitration for Trust Disputes

Colin Connor published an Article entitled, Changing the Game: The Effects of the 2012 Revision of the ICC Arbitration Rules on the ICC Model Arbitration Clause for Trust Disputes, 43 Ga. Int’l Comp. L. 667 (2015). Provided below is an abstract of the Article:

While the current state of arbitration law in the United States is both interesting and dynamic, the more relevant question for this Note is the enforceability of arbitration agreements included in testamentary instruments outside of the United States. While the United States has the FAA, there is no similarly binding authority on foreign nations. In order to promote uniformity in the international setting, the International Chamber of Commerce (ICC) created a task force to draft model arbitration rules and clauses, similar to those of the AAA, for use in international contracts.

The ICC’s 2012 revision of its arbitration rules addressed several of the most glaring problems, particularly regarding the arbitration of ubiquitous multi-party disputes. Unfortunately, another problem has arisen since the revision: did the drafters of the model clause intend the clause to function solely under the rules it was designed under, or did they intend the clause to incorporate revisions to the rules going forward?

In order to answer this question, two other questions must be answered in turn. First, what were the goals of the 1998 ICC Rules and the 2006 Model Clause? Second, what was the intent of the drafters of the 2006 Model Clause?

After answering the question of whether the 2006 Model Clause should now operate under the 2012 Rules, a determination of whether the rules revision has affected the overall enforceability of the 2006 Clause can be made.

The subsequent sections begin with the differences between the 1998 and 2012 Rules, then discuss whether these changes promote or diminish the potential enforceability of the Model Clause based on the reasoning of courts that heard these disputes in the recent past.