Arbitration of succession disputes under Swiss and French law

A multi‑trillion intergenerational transfer of wealth is reshaping private client practice and amplifying the number and complexity of cross‑border estates. State court litigation—often slow, formalistic, and public—struggles to provide coherent and timely outcomes, particularly where parallel proceedings across jurisdictions create duplication and inconsistency. Against this backdrop, arbitration offers a private, flexible forum with access to specialist adjudicators. Where legally feasible, it can consolidate dispersed issues, accelerate resolution, and preserve confidentiality. Drawing on recent developments, this article compares Swiss and French approaches to the arbitrability of succession disputes, focusing on procedural feasibility, enforceability, and practice.

Since 2021, Swiss law expressly permits arbitration clauses in unilateral instruments and in corporate or foundation statutes, provided the seat of arbitration is in Switzerland. This legislative clarification coincides with an institutional innovation: the Swiss Arbitration Centre’s Supplemental Swiss Rules for Trust, Estate and Foundation Disputes (the “TEF Rules”), effective 1 July 2025. Together, these developments render arbitration an operational and attractive option for international wealth planning.

At the normative level, both the Swiss Civil Procedure Code and the Swiss Private International Law Act allow arbitration clauses to be embedded in a will, an inheritance agreement, a trust deed, or the statutes of a foundation, if the arbitral seat is in Switzerland. In practice, a testator may therefore direct that disputes among heirs, legatees, or executors be referred to arbitration; likewise, internal disputes involving foundations and trusts may be resolved by arbitral tribunals rather than state courts.

Advantages

The advantages are concrete:

• Confidentiality protects personal and financial information.
• Party autonomy enables the appointment of arbitrators experienced in succession matters, along with tailored choices of language and seat.
• Procedure can be calibrated to the needs of the case, often yielding a final award more quickly than court litigation.
• Critically, international recognition and enforcement under the New York Convention enhances the effectiveness of arbitral awards.

Limitations

Limits nonetheless persist:

• Certain courts retain exclusive jurisdiction (for example, over rights in rem in immovable property).
• Mandatory rules, notably forced‑heirship protections, must be respected.

These constraints informed the design of the TEF Rules, and should be anticipated at the clause drafting stage.

The TEF Rules

The TEF Rules complement the Swiss Rules of International Arbitration with mechanisms adapted to the realities of trust, estate, and foundation disputes. They cover clauses contained in unilateral instruments, such as wills or foundation statutes, and can be opted into via contract, including inheritance agreements.

They also account for “entitled persons” who, while not formal parties, may be impacted by the outcome—such as minors or unborn heirs. The framework requires their identification and notification and provides for appropriate representation to safeguard fairness and the enforceability of awards. Confidentiality extends to these persons and their representatives.

As to applicable law, the TEF Rules adjust the usual Swiss approach to avoid diluting mandatory succession norms: absent a valid choice of law, the tribunal determines the applicable substantive law by reference to the conflict‑of‑laws rules governing succession at the deceased’s last domicile. The Swiss Arbitration Centre also publishes model clauses tailored to wills, inheritance agreements, trust deeds, and foundation statutes.

For international families, the result is a coherent, pragmatic framework. Arbitration delivers discretion, expertise, and cross‑border enforceability, and it promotes consolidation of issues before a neutral and efficient forum.

In France, the arbitrability of inheritance disputes has long been acknowledged in case law, albeit without a dedicated statutory regime. Articles 2059 and 2060 of the Civil Code govern the field, permitting arbitration over rights freely disposable by the parties and excluding matters of personal status and capacity. On this basis, practice and scholarship accept the arbitrability of disputes concerning division or liquidation of the estate, inventory and valuation of assets, tax liabilities, and the validity and interpretation of testamentary dispositions, including assessment of the testator’s intent and consent. The question of whether a party qualifies as an heir may also be arbitrated, provided resolution does not entail determining personal status—such as establishing filiation.

Despite these advantages, arbitration in succession matters remains underused in practice. Recent initiatives by practitioners and specialized centres for family disputes indicate growing interest, with inheritance cases forming a substantial share of arbitrable family disputes.

Potential Developments

Structural reform is now underway. A draft Arbitration Code presented by a committee of practitioners in March 2025 includes a chapter dedicated to succession and proposes the following principle: “Questions relating to successions may be submitted to arbitration as soon as the succession is opened.” If adopted, this would enshrine in statute the possibility of arbitrating inheritance disputes.

However, unlike Switzerland, France does not appear to be taking an equivalent step forward. The reform still limits the use of arbitration in succession matters to situations in which the estate has already been opened. As a consequence, parties may initiate arbitration only by signing an arbitration agreement after the death of the de cujus, once their succession rights have become available. This continues to preclude the inclusion of arbitration clauses in wills and thus prevents any anticipatory recourse to arbitration.

Yet anticipation is a key driver of certainty and efficiency in this area. The traditional obstacle lies in the contractual nature of arbitration and the unilateral character of wills, which do not bind heirs before the estate opens. Nonetheless, safeguards could be envisaged to secure heirs’ consent at the appropriate time—whether through conditional mechanisms, structured post-opening agreements, or adequate representation. Such measures would accommodate the expected increase in inheritance litigation and reinforce the place of arbitration in domestic practice.

Conclusion

Switzerland now offers a clear and specialised framework for the arbitration of succession disputes, as well as disputes involving trusts and foundations, which is further strengthened by the entry into force of the TEF Rules on 1 July 2025. It enables genuine anticipatory planning through the inclusion of arbitration clauses in wills, inheritance agreements, trust instruments or foundation statutes, though it is subject to mandatory limitations (e.g. forced heirship, rights in rem over immovable property).  It is also supported by dedicated mechanisms, such as the identification and notification of affected persons and their appropriate representation.

In France, the ongoing reform is moving toward an explicit statutory recognition of arbitration in succession matters, but still confines its use to proceedings based on arbitration agreements concluded after the opening of the estate, thereby excluding any anticipatory resort through a unilateral clause.

In both systems, arbitration meets the growing demand for confidentiality, expertise and procedural efficiency, while enhancing the international enforceability of the solutions adopted.