weaknesses of trust law in England and Wales and ways of improving it. The TLC is based at King's College, London. At the time the report was done in 2010 members included Sir Peter Gibson, Professor Paul Matthew, John Wood, Christopher McCall QC, Mark Herbert QC, Simon Taube QC, Simon Jennings, Robin Ellison and Henry Freydenson. The work of the TLC is well respected in England including by its Law Commission. The TLC report supported amendment to the (English) Arbitration Act 1996 to give validity to provisions in wills and settlements imposing a resort to arbitration (except disputes about the validity of the trust).12 Interestingly the TLC was not concerned with any of the objections raised by the Report; indeed they do not appear to have been mentioned. Instead it emphasised the desirability of the arbitration of trust disputes and did not require additional court supervision as proposed by the Report.13 Of particular relevance is paragraph [16] which said: [t]here is a further positive reason for adopting arbitration in the trust field in England and Wales, namely that there is already a strong and respected legal history of arbitration here (for contractual disputes), coupled with still well-respected legal professionals offering the required expertise (as litigators, advocates and as arbitrators) to conduct trust arbitration at every level, together with an internationally respected statute, the Arbitration Act 1996. It is legitimate to hope and expect that, if that Act were capable of amendment so as to incorporate trust disputes within its ambit (which we believe to be the case), that would add significantly to the attraction of arbitration, and of arbitration clauses in settlements and wills, for settlors and testators abroad as well as at home. The same applies to New Zealand. Conclusion It is unfortunate that the Ministry of Justice, through the Report, has adopted such a negative view of the Bill and of the value of allowing the arbitration of trust disputes. It is hoped that the Justice Committee in its report will set aside the objections of the Report and allow the Bill to proceed so that New Zealand can join other jurisdictions such as Arizona, Florida, Missouri, New Hampshire and South Dakota in facilitating the arbitration of trust disputes.
End Notes 1 Paragraph [42] of the Report. 2 Paragraph [46] of the Report. 3 It is unlikely the provision saying it can occur 'where all parties agree' will ever be used as that will require a fixed trust without any unborn, minor or unascertained beneficiaries which are rare. 4 Such provisions are common in New Zealand. They are also common in history – for example George Washington's will included such a clause. 5 Smith v Hugh Watt Society Inc [2004] 1 NZLR 537 (at para 62). 6 Welker v Rinehart (No 2) [2011] NSWSC 1238; Rinehart v Welker [2012] NSWCA 95. 7 Welker v Rinehart (No 2) [2011] NSWSC 1238 at [25]. 8 In re Tuck's Settlement Trust [1978] 1 Ch 49. 9 HW Tang and Paul Tan, ‘Singapore: Trust Disputes and Arbitration’ in Arbitration of Trust Disputes, (Oxford University Press, 2016) at [15.15]. 10 Rinehart v Welker [2012] NSWCA 95 at [175]. The Commercial Arbitration Act is the equivalent of New Zealand's Arbitration Act 1996. 11 Originally published in 2010 and then updated. 12 Paragraph [4] of the TLC report. The TLC also recommended a provision requiring public hearings unless all the parties agreed otherwise, the interests of one or more children were involved or the court directed to the contrary. That was proposed to take into account Article 6(1) of the European Convention on Human Rights which does not apply in New Zealand. Further such a provision would be of limited effect in New Zealand given that most trusts are wide discretionary trusts and the interests of children will regularly be involved in the dispute.