Civil Engineering Reference
In-Depth Information
Chapter 17
Arbitration
17.1 Introduction
It seems likely that arbitration was known in Scotland before the establishment of
thepubliccourts.Itsintroductionhasbeendescribedascontemporaneouswiththe
foundation of Scots law, see
MacCallum
v.
Lawrie
(1810).
Recourse to arbitration continued to be frequent, as in most developed countries,
even after regular courts of law had been established, particularly in mercantile mat-
tersandinawiderangeofcaseswherethequestionsatissuewerebestsuitedto
determination by a person with requisite skill or experience, or where it was hoped to
avoid the delay, expense and publicity of procedure in the courts of law.
In the past, arbitration has been the traditional means of obtaining a final decision
on disputes in the construction industry. his is because arbitration procedure can be
well suited to the types of dispute that arise under construction contracts. This has
been reflected in standard form contracts, such as those produced by JCT, the SBCC
and ICE, which have required disputes to be resolved by arbitration. However, the
absence of modern and comprehensive arbitration legislation for Scotland was, until
recently, considered to be one of the reasons why fewer and fewer disputes were being
referred to arbitration in Scotland. Arbitration law in Scotland was derived primar-
ily from case law rather than being codified in statute. Accordingly, the position was
not readily clear or accessible with gaps and difficulties in establishing what the law
actually was. his was in contrast with many other jurisdictions where clear statutory
frameworks were in place. Although Scotland did have some sets of rules regarding
arbitration, sponsored by interested organizations, these were without statutory back-
ing and thus did not have adequate force. Furthermore, while the Scottish courts have
supported arbitration,their role in the past has not always been clear. In the absence of
a clear statutory framework, arbitration was considered to be more time-consuming
andexpensivethanitneededtobe.Asaresult,partieshadgrownaccustomedtorefer-
ring disputes to the Commercial Court of the Court of Session for final determination.
The Arbitration (Scotland) Act 2010 ('the 2010 Act') was introduced to address these
concerns. A full discussion of the provisions of the 2010 Act is beyond the scope of
this Chapter but a brief outline is given in Section 17.2.
MacRoberts on Scottish Construction Contracts
,hirdEdition.MacRoberts.
© 2015 John Wiley & Sons, Ltd. Published 2015 by John Wiley & Sons, Ltd.
