Overview

Settling trust disputes without litigation can save all parties legal costs and maintain confidentiality (reducing the risk of unwelcome publicity). ADR and Trusts is a development from the authors' accredited mediation training course for the Society of Trust and Estate Practitioners (STEP). Part A introduces the reader to the different forms of dispute resolution, and examines the differences between arbitration and mediation of trust and fiduciary disputes. The mediation process is explained, including: the role of professional advisors, and the tools and techniques for mediation. The authors examine ways of avoiding disputes, cross-border aspects of Alternative Dispute Resolution (ADR), the psychological factors affecting mediation, the mediator's powers to mediate and settle disputes, and ethical issues in Trust ADR. Islamic and Sharia Trust ADR is also considered, with close study of the developing approaches in Canada and the UK. Part B examines 27 jurisdictions and how trust law and ADR operates in each of them. The jurisdictions covered are: Australia, Bahamas, Barbados, The British Virgin Islands, Canada, Cyprus, England and Wales, Florida, France, Gibraltar, Guernsey, Hong Kong, India, Ireland, Isle of Man, Israel, Italy, Jersey, Liechtenstein, Malaysia, Mauritius, New Zealand, Panama, Scotland, Singapore, Switzerland, and the United Arab Emirates. Each profile addresses: arbitration law and practice, trust law, the mandatory requirements for mediation and the enforcement of ADR awards. Mediators, arbitrators, trust and estate planning practitioners, trust managers and anyone involved in trust disputes should all benefit from reading this book.

Full Product Details

Author:   Grant Jones ,  Peter Pexton
Publisher:   Spiramus Press
Imprint:   Spiramus Press
Dimensions:   Width: 15.60cm , Height: 2.00cm , Length: 23.40cm
Weight:   0.612kg
ISBN:  

9781907444586

ISBN 10:   1907444580
Pages:   400
Publication Date:   01 November 2014
Audience:   Professional and scholarly ,  Professional & Vocational
Format:   Paperback
Publisher's Status:   Active
Availability:   Temporarily unavailable  
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Table of Contents

Foreword by Geoffrey A Shindler A. Introduction to Dispute Resolution 1 Arbitration of Trust and Fiduciary Disputes 1.1 Introduction 1.2 The Advantages and Disadvantages of Trust Arbitration 1.3 The Conceptual Difficulty 1.4 Human Rights Issues 1.5 Trust Arbitration Cases 1.6 Jurisdictions with Statutorily Authorised Trust Arbitration Clauses 1.7 Laws Governing an Arbitration and their Impact upon Trust Situations 1.8 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York1958) (the 'New York Convention') 1.9 Convention on the Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 30th October 2007 (the 'Euro Convention') 1.10 Drafting Arbitration Clauses 1.11 Specific Trust Arbitration Clauses 1.12 Summary 2 Benefits of Mediation for Trust and Fiduciary Disputes 2.1 Avoiding Costs Orders 2.2 Perspectives 2.3 Mediation in a Trust Specific Context 3 The Mediation Process 3.1 Contractual Requirement to Mediate 3.2 Mediation Chronology 3.3 Trust Specific Issues 3.4 The Settlement Agreement Appendix 1: Agreement for Appointment of the Mediator Appendix 2: Settlement Agreement 4 The Role of Professional Advisors 4.1 Lawyer's Role during the Mediation Proper 4.2 Lawyer's Role before the Mediation 4.3 The Lawyer's Role during the Mediation 4.4 The Role of Non-lawyer Experts within the Mediation Process 5 Tools and Techniques for Mediation 5.1 BATNA/WATNA 5.2 Interest-Based Mediation (Integrative Mediation) 5.3 Doubt and Dissonance Techniques 5.4 Hypothesis or Testing Mediation Techniques 6 Avoiding Disputes 6.1 Good Commercial Practice 6.2 Dispute Management 6.3 Non-contest Clauses 6.4 Duty to Negotiate 6.5 Negotiation 6.6 Facilitation and Facilitated Negotiation 6.7 Facilitation Quintessentially 6.8 Negotiation Compared to Mediation 7 Cross-Border Aspects and Issues 7.1 Types of Dispute 7.2 Analysis of Disputes 7.3 External disputes 7.4 Internal Disputes 7.5 Trust Specific Issues in Mediation 8 Typical Trust and Fiduciary Disputes 8.1 Trustees and Third Party Disputes 8.2 Disputes between Parties to a Trust 8.3 Costs: Fees and Disbursements 9 Preparation of Briefings and Openings by Mediants 9.1 Pre-mediation-proper Items 9.2 Mediation Proper Items 9.3 The Opening Statement Appendix 1: A Suggested Settlement Checklist Template 10 The Psychology of Mediation 10.1 Conflict 10.2 Chronology of Mediation 10.3 General Psychological Factors Affecting Mediation 10.4 Being Heard 11 The Mediator's Perspective 11.1 Powers to Mediate and Settle Disputes 11.2 Ethical Issues 11.3 Disclosure of Information 11.4 Relative Size of Dispute 12 Considerations for Islamic and Sharia Trust ADR 12.1 Islamic Jurisprudence and the Concept of the Trust 12.2 Ontario: an Act to amend the Arbitration Act 1991, 2006 ('the Act') 12.3 Arbitration and Mediation Services (Equality) Bill (the 'English Bill') 12.4 ADR Codes of Conduct 12.5 Arbitration and Mediation in Islamic Jurisprudence B Jurisdictions Introduction 1 Australia 1.1 Arbitration Law and Practice 1.2 Local Trust Law 1.3 Local Mediation Law and Practice 1.4 Ratification of the New York Convention 1.5 Attitude of the Local Courts and Authorities to ADR 1.6 Use of ADR Clauses and Provisions in Trust and Foundation Instruments 1.7 Mandatory Requirements for Mediation 1.8 Enforcement of ADR Awards 2 Bahamas 2.1 Arbitration Law and Practice 2.2 Trust Law 2.3 Mediation Law and Practice 2.4 Ratification of the New York Convention ('NYC') 2.5 Attitude of Local Courts and Authorities to ADR 2.6 Use of ADR Clauses and Provisions in Trust and Foundation Instruments 2.7 Mandatory Requirements for Mediation 2.8 Enforcement of ADR Awards 3 Barbados 3.1 Arbitration Law in Practice 3.2 Trust Law 3.3 Mediation Law and Practice 3.4 Ratification of the New York Convention ('NYC') 3.5 Attitude of Local Courts and Authorities to ADR 3.6 Use of ADR Clauses and Provisions in Trust and Foundation Instruments 3.7 Mandatory Requirements for Mediation 3.8 Enforcement of ADR Awards 4 The British Virgin Islands 4.1 Arbitration Law and Practice 4.2 Trust Law 4.3 Mediation Law and Practice 4.4 Ratification of the New York Convention ('NYC') 4.5 Attitude of Local Courts and Authorities to ADR 4.6 Use of ADR Clauses and Provisions in Trust Instruments 4.7 Mandatory Requirements for Mediation 4.8 Enforcement of ADR Awards 5 Canada 5.1 Arbitration Law and Practice 5.2 National initiatives to implement arbitration 5.3 Trends and tendencies in arbitration 5.4 Trust Law 5.5 Mediation Law and Practice 5.6 Ratification of the New York Convention 5.7 Attitude of Local Courts and Authorities to ADR 5.8 Use of ADR Clauses and Provisions in Trust and Foundations Instruments 5.9 Mandatory Requirements for Mediation 5.10 Enforcement of ADR Awards 6 Republic of Cyprus 6.1 Arbitration Law and Practice 6.2 Trust Law 6.3 Mediation Law and Practice 6.4 Ratification of the New York Convention ('NYC') 6.5 Attitude of Local Courts and Authorities to ADR 6.6 Use of ADR Clauses and Provisions in Trust and Foundation Instruments 6.7 Mandatory Requirements for Mediation 6.8 Enforcement of ADR Awards 7 England and Wales 7.1 Arbitration Law and Practice 7.2 Trust Law 7.3 Mediation Law and Practice 7.4 Ratification of the New York Convention ('NYC') 7.5 Attitude of Local Courts and Authorities to ADR 7.6 Use of ADR Clause and Provisions in Trust Instruments. 7.7 Mandatory Requirements for Mediation 7.8 Enforcement of ADR Awards 8 Florida 8.1. Arbitration Law and Practice 8.2. Trust Law 8.3. Mediation Law and Practice 8.4. Ratification of the New York Convention ('NYC') 8.5. Attitude of Local Courts and Authorities to ADR 8.6. Use of ADR Clauses and Provisions in Trust and Foundation Instruments 8.7. Mandatory Requirements for Mediation 8.8. Enforcement of Arbitration Awards and Mediated Settlement Agreements 9 France 9.1 Arbitration Law and Practice 9.2 Trust Law 9.3 Mediation Law and Practice 9.4 Ratification of the New York Convention ('NYC') 9.5 Attitude of Local Courts and Authorities to ADR 9.6 Use of ADR Clauses and Provisions in Trust and Foundation Instruments 9.7 Mandatory Requirements for Mediation 9.8 Enforcement of ADR Awards 10 Gibraltar 10.1 Arbitration Law and Practice 10.2 Trust Law 10.3 Mediation Law and Practice 10.4 Ratification of the New York Convention ('NYC') 10.5 Attitude of Courts and Authorities to ADR 10.6 Use of ADR Clauses and Provisions in Trust and Foundation Instruments 10.7 Mandatory Requirements for Mediation 10.8 Enforcement of ADR Awards 11 Guernsey 11.1 Arbitration Law and Practice 11.2 Trust and Foundation Law 11.3 Mediation Law and Practice 11.4 Ratification of the New York Convention ('NYC') 11.5 Attitude of Local Courts and Authorities to ADR 11.6 USE of ADR Clauses and Provisions in Trust and Foundation Instruments 11.7 Mandatory Requirements for Mediation 11.8 Enforcement of ADR Awards 12 Hong Kong Special Administrative Region (HKSAR) 12.1 Arbitration Law and Practice 12.2 Trust Law 12.3 Mediation Law and Practice 12.4 Ratification of the New York Convention ('NYC') 12.5 Attitude of Local Courts to ADR 12.6 Use of ADR Clauses and Provisions in Trust and Foundation Instruments 12.7 Mandatory Requirements for Mediation 12.8 Enforcement of ADR Awards 13 India 13.1 Arbitration Law and Practice 13.2 Trust Law 13.3 Mediation Law and Practice 13.4 Ratification of the New York Convention ('NYC') 13.5 Attitude of Local Courts and Authorities to ADR 13.6 Use of ADR Clauses and Provisions in Trust and Foundation Instruments 13.7 Mandatory Requirements for Mediation 13.8 Enforcement of ADR Awards 14 Ireland 14.1 Arbitration Law and Practice 14.2 Trust Law 14.3 Mediation Law and Practice 14.4 Ratification of the New York Convention 14.5 Attitude of Local Courts and Authorities to ADR 14.6 Use of ADR Clauses and Provisions in Trust and Foundation Instruments 14.7 Mandatory Requirements for Mediation 14.8 Enforcement of Arbitration Awards and ADR 15 Isle of Man 15.1 Arbitration Law and Practice 15.2 Trust Law 15.3 Mediation Law and Practice 15.4 Ratification of the New York Convention 15.5 Attitude of Local Courts and Authorities to ADR 15.6 Use of ADR Clauses and Provisions in Trust and Foundation Instruments 15.7 Mandatory Requirements for Mediation 15.8 Enforcement of ADR Awards 16 Israel 16.1 Arbitration Law and Practice 16.2 Trust Law 16.3 Mediation Law and Practice 16.4 Ratification of the New York Convention ('NYC') 16.5 Attitude of Local Courts and Authorities to ADR 16.6 Use of ADR Clauses and Provisions in Trusts and Foundation Instruments 16.7 Mandatory Requirements for Mediation 16.8 Enforcement of ADR Awards 17 Italy 17.1 Arbitration Law and Practice 17.2 Trust Law 17.3 Mediation Law and Practice 17.4 Ratification of the New York Convention 17.5 Attitude of Local Courts and Authorities to ADR 17.6 Use of ADR Clauses and Provisions in Trust and Foundation Instruments 17.7 Mandatory Requirements for Mediation 17.8 Enforcement of ADR Awards 18 Jersey 18.1 Arbitration Law and Practice 18.2 Trust and Foundation Law 18.3 Mediation Law and Practice 18.4 Ratification of the New York Convention 18.5 Attitude of Local Courts and Authorities to ADR 18.6 Use of ADR Clauses and Provisions in Trust and Foundation Instruments 18.7 Mandatory Requirements for Mediation 18.8 Enforcement of ADR Awards 19 Liechtenstein 19.1 Arbitration Law and Practice 19.2 Trust and Foundation Law 19.3 Mediation Law and Practice 19.4 Ratification of the New York Convention ('NYC') 19.5 Attitude of Local Courts and Authorities to ADR 19.6 Use of ADR Clauses and Provisions in Trust and Foundation Instruments 19.7 Mandatory Requirements for ADR 19.8 Enforcement of ADR Awards 20 Malaysia 20.1 Arbitration Law and Practice 20.2 Trust Law 20.3 Mediation Law and Practice 20.4 Ratification of the New York Convention ('NYC') 20.5 Attitude of the Malaysian Courts and Authorities to ADR 20.6 Use of ADR Clauses and Provisions in Trust and Foundation Instruments 20.7 Mandatory Requirements for Mediation 20.8 Enforcement of ADR Awards 21 Mauritius 21.1 Arbitration Law and Practice 21.2 IAA Rules 21.3 Trust and Foundation Law 21.4 Mediation Law and Practice 21.5 Ratification of the New York Convention 21.6 Attitude of Local Courts and Authorities to ADR 21.7 Use of ADR Clauses and Provisions in Trust and Foundation Instruments 21.8 Mandatory Requirements for Mediation 21.9 Enforcement of ADR Awards 22 New Zealand 22.1 Arbitration Law and Practice 22.2 Trust Law 22.3 Mediation Law and Practice 22.4 Ratification of the New York Convention 22.5 Attitude of Local Courts and Authorities to ADR 22.6 Use of ADR Clauses and Provisions in Trust and Foundation Instruments 22.7 Mandatory Requirements for Mediation 22.8 Enforcement of ADR Awards 23 Panama 23.1 Arbitration Law and Practice 23.2 Trust Law 23.3 Mediation Law and Practice 23.4 Ratification of the New York Convention 23.5 Attitude of Local Courts and Authorities to ADR 23.6 Use of ADR Clauses and Provisions in Trust and Foundation Instruments 23.7 Mandatory Requirements for Mediation 23.8 Enforcement of ADR Awards 24 Scotland 24.1 Arbitration Law and Practice 24.2 Trust Law 24.3 Mediation Law and Practice 24.4 Ratification of the New York Convention 24.5 Attitude of Local Courts and Authorities to ADR 24.6 Use of ADR Clauses and Provisions in Trust and Foundation Instruments 24.7 Mandatory Requirements for Mediation 24.8 Enforcement of ADR Awards 25 Singapore 25.1 Arbitration Law and Practice 25.2 Trust Law 25.3 Mediation Law and Practice 25.4 Ratification of the New York Convention ('NYC') 25.5 Attitude of Local Courts and Authorities to ADR 25.6 Use of ADR Clauses and Provisions in Trust and Foundation Instruments 25.7 Mandatory Requirements for Mediation 25.8 Enforcement of ADR Awards 26 Switzerland 26.1 Introduction to Arbitration Law and Practice 26.2 Trust Law 26.3 Mediation Law and Practice 26.4 Ratification of the New York Convention ('NYC') 26.5 Attitude of Local Courts and Authorities to ADR 26.6 Use of ADR Clauses and Provisions in Trust and Foundation Instruments 26.7 Mandatory Requirements for Mediation 26.8 Enforcement of ADR Awards 27 United Arab Emirates 27.1 Arbitration Law and Practice 27.2 Trust Law 27.3 Mediation Law and Practice 27.4 Ratification of the New York Convention ('NYC') 27.5 Attitude of Local Courts and Authorities to ADR 27.6 Use of ADR Clauses and Provisions in Trust and Foundation Instruments 27.7 Mandatory Requirements for Mediation 27.8 Enforcement of ADR Awards

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Author Information

Grant Jones is an insolvency accountant partner with Cooper Parry LLP. He also practises as an attorney, in-house with a UK hedge fund and as a consultant to the UK firm of Taylor Vinters and the Gibraltar firm of Ellul & Co, as well as having his own arbitration practice. He is a member of the Governing Council of the ICAEW, President of the London Society of Chartered Accountants and a Special Professor of Law at Nottingham University. Peter Pexton is a Fellow of the Institute of Chartered Accountants, an Associate of the Chartered Institute of Arbitrators and an active member of the Society of Trust and Estate Practitioners [STEP]. Founder chairman of the Jersey Branch and immediate past chairman of Verein STEP (Switzerland), he now chairs the Membership Committee of STEP Worldwide. Specialising in offshore trusts, estates and tax planning, Peter practised as a partner in the Jersey firm of Ernst and Young, then as a director of Royal Bank of Canada Trustees Limited and more recently as a director of Ganten Group in Liechtenstein.

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