Arbitration contracts between trustees and their investment agents (II): An article and a case that crossed in the mail

Charles E. Rounds, Jr.

The law review article Charles E. Rounds, Jr., Arbitration Contracts Between Trustees and Their Investment Agents: A Warning Label, 93 N. Dakota L. Rev. 263 (2018) and Harvey ex rel. Gladden v. Cumberland Trust and Investment Company, 532 S.W3d 243 (Tenn. 2017) came out/down about the same time, and thus neither refers to the other. While the court extensively parses Uniform Trust Code provisions that are not particularly relevant to whether a trust beneficiary can be bound by the arbitration clause in a contract between the trustee and his investment agent, it ignores altogether those provisions that are profoundly relevant. The decision’s starting point, actually its centerpiece, should have been a fleshing out of the critical doctrine that is merely alluded to in footnote 34 of the decision. Here is the footnote: “In this appeal, Plaintiff does not allege that there are particular facts in this case that would make the Trustee’s decision to enter into a predispute arbitration agreement a breach of the Trustee’s fiduciary duty, and our holding does not preclude such an argument.” That “alluded-to” doctrine is what the article is all about. Thus, the article flags and parses those UTC provisions that, at least in the opinion of the article’s author, are directly relevant to the issue of whether a trust beneficiary, who was never a party to the arbitration contract, can still be bound by its terms. The article has been downloaded and is available below.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Charles E. Rounds, Jr.

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