Civil Engineering Reference
In-Depth Information
statement includes matters arising out of many different types of contract including
contracts relating to land and structures erected on land (heritable property) includ-
ing building contracts.
The right to arbitrate may be lost if the court process is used in a way which evi-
dences an intention not to arbitrate. Such actions may found a plea of waiver, see
Inverclyde Mearns Housing Society
v.
Lawrence Construction Co. Ltd
(1989).
Only questions which the parties could, if they wished, determine for themselves
by a legally binding contract may be submitted to ordinary arbitration. Certain ques-
tions may not be referred to arbitration, for example, matters in which the public
have an interest such as the status of parties (paternity, legitimacy, marriage, divorce
and domicile). There cannot be an arbitration on whether someone has committed a
crime. Further, certain transactions are illegal and are not enforceable and therefore
cannot be referred to arbitration.
It has been held that an arbitrator may consider the question of fraud in any case
where the incidental determination of this point is necessary in order to settle the real
question at issue, see
Earl of Kintore
v.
Union Bank of Scotland
(1863). The question
of whether or not there is an arbitrable dispute which must be referred to arbitration
arises with great frequency out of many different contracts and has produced a large
number of cases.
17.1.5 Scope of arbitration
hescopeof thedisputereferredto arbitration willdependupon what thepartieshave
actually agreed. hus an arbitrator will have jurisdiction and power only in relation to
those specific matters or questions which the parties have agreed to submit to him. It
can be seen therefore that a court may still have jurisdiction in a dispute where certain
questions have been referred to arbitration but the determination of those questions
does not resolve the dispute. In such circumstances, the court may still pronounce a
decree in the action provided its judgment is in line with the awards of any arbitrator,
see
Hamlyn & Co
.v.
Talisker Distillery Co
. (1894). Such situations arise frequently in
civil actions and it is common for courts to sist actions until questions referred to
arbitration are resolved.
17.1.6 Absence of codified statutory framework for control of arbitration
Unlike that of other countries, including England and Wales, the law of arbitration
in Scotland was, until recently, based almost entirely on the common law developed
over the centuries since the 25th Act of the Articles of Regulations 1695 and only
marginally affected by statute. The most important statutory provisions were:
•
Section 2 of the Arbitration (Scotland) Act 1894 - which gave the Court of Session
and Sheriff Court the power to appoint an arbitrator should the parties fail to agree
on a particular person.
•
Section 3 of the Administration of Justice (Scotland) Act 1972 - which gave an
arbitrator the power to state a case, on the application of either party, on a point
