Civil Engineering Reference
In-Depth Information
of law, to the Court of Session in order to obtain its opinion. While the arbitrator
had a discretion to decide whether or not to state a case, if he refused to do so he
hadtoprovideastatementofhisreasonsandtheCourtofSessioncouldstilldirect
that he state a case for its opinion. he power to state a case could be excluded by
the parties in which event the only remedy open to a party dissatisfied with the
outcome was to seek judicial review or reduction of the award but these remedies
were only available in very limited and unusual circumstances.
•
Section 66 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 -
effectively adopted the UNCITRAL Model Law on International Commercial
Arbitration for international arbitrations held in Scotland.
The lack of a codifying statute setting out a modern and comprehensive Scots law on
arbitration was the subject of much controversy. Many of the recognized deficiencies
in the Scots law of arbitration, including the absence of a common law power to award
damages or to award interest before the date of decree arbitral, had to be addressed
by practical means. For example, in many cases arbitrators were given appropriate
powers by the parties: (a) in the arbitration clause itself, (b) in the Deed of Appoint-
ment or Submission or (c) by adopting a set of Arbitration Rules such as the Scottish
Arbitration Code which was promulgated by the Scottish Council for International
Arbitration, SBCC and the Chartered Institute of Arbitrators (Scottish Branch).
17.2 The Arbitration (Scotland) Act 2010
As indicated above, the problems caused by the lack of a modern statutory framework
for arbitration were addressed by the 2010 Act. A full examination of the 2010 Act is
beyond the scope of this chapter. However, some of the key provisions of the 2010 Act
are discussed below.
The 2010 Act seeks to be a self-standing piece of legislation to be used by those who
wish to adopt arbitration as a dispute resolution mechanism for final and binding
decisions. It endeavours to provide answers to the vast majority of questions likely
to arise throughout the arbitration process. The 2010 Act provided a model law for
Scotland which is generally in line with or surpasses international standards and aims
to capture the best of international practice. he 2010 Act is designed to be applicable
to both domestic and international arbitrations.
In relation to arbitrations which have already commenced or arbitration agree-
ments which have been entered into and in connection with which the parties have
agreed the 2010 Act should not apply, the common law position, or any rules which
the parties have agreed should apply to the arbitration, will apply. Readers are referred
to the Second Edition of this topic which sets out the pre-2010 Act position in more
detail.
It is hoped that the 2010 Act will encourage the use of arbitration in Scotland as
well as attracting international arbitrations to Scotland. It is also hoped that indus-
tries and professions will set up their own low cost arbitrationschemes. he Chartered
Institute of Arbitrators (Scottish Branch) has produced a set of Short Form Arbitra-
tion Rules based upon the 2010 Act provisions (with explanatory notes) which are
