ICC Arbitration Clause for Trust Disputes and Explanatory Note

  • 6 November 2018

ICC Arbitration Clause for Trust Disputes and Explanatory Note

The ICC Arbitration Clause for Trust Disputes reviewed in light of the ICC Arbitration Rules as revised in 2012 and subsequently amended in 2017.

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ICC Arbitration Clause for Trust Disputes

All disputes arising out of or in connection with this Trust [as defined in the trust instrument] shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.

The settlor, the original trustee(s) and the original [protector(s)] [other original power-holder(s)] hereby agree to the provisions of this arbitration clause, and each successor trustee and [protector] [other powerholder], by acting or agreeing to act under the Trust, also agree, or shall be deemed to have agreed, to the provisions of this arbitration clause.

Any beneficiary claiming or accepting any benefit, interest or right under the Trust, shall be bound by, and shall be deemed to have agreed to, the provisions of this arbitration clause.

Subject to the law governing the Trust and without prejudice to any other confidentiality obligation that may apply:
a) the arbitral proceedings, including the fact that they are taking place, have taken place or will take place, are private and confidential; and
b) any award or decision rendered by the arbitral tribunal or any settlement agreement between the parties shall be kept confidential and shall not be disclosed to any person, except to the extent that disclosure is required by law or pursuant to any rule, requirement or request of any regulatory or governmental authority or stock exchange, or is necessary or advisable in the administration of the Trust or for the implementation or enforcement of the award or decision.

Should there be a need for interim measures, the ICC Arbitration Rules allow conservative and interim measures to be sought under Article 28 or, when such measures cannot await the constitution of the arbitral tribunal, allow emergency arbitrator proceedings to be initiated pursuant to the Emergency Arbitrator Provisions.

It is possible to exclude recourse to the Emergency Arbitrator Provisions. If this is desired, it should be expressly stated by adding the following wording to the arbitration clause:
The Emergency Arbitrator Provisions shall not apply.

Article 30 of the ICC Arbitration Rules provides for the application of an expedited procedure. If this procedure should not be applied, it should be expressly stated by adding the following wording to the arbitration clause:
The Expedited Procedure Provisions shall not apply.