Civil Engineering Reference
In-Depth Information
designedprincipallyforusewheretheamountofanyclaimorcounterclaimindispute
does not exceed £25,000.
17.2.1 Commencement
The substantive provisions of the 2010 Act came into force in June 2010. Commence-
ment and transitional provisions were quite controversial areas at Bill stage because
there were no proper transitional provisions and the 2010 Act would have applied to
all arbitrations commenced after the 2010 Act came into force. Clearly, certain parties
would have contracted to settle their disputes by arbitration but on the pre-2010 Act
regime and some thought it unfair to tie them to a new statutory regime of which they
hadnotbeenawarewhentheyagreedtosettletheirdisputesbyarbitration.
Accordingly,section36ofthe2010Actnowcontainscertaintransitionalprovisions
which seek to address that concern, namely:
1. The 2010 Act does not apply to arbitration agreements entered into before the
coming into force of the 2010 Act if the parties agree that the 2010 Act is not
to apply to their arbitration.
2. Ministers may by order specify any date falling at least 5 years after commence-
mentasthedayonwhichthepositionin1.abovewillceasetohaveefect.
3. Before making the order referred to in 2. above, Ministers must consult with
those persons having an interest in the law of arbitration.
In section 1 the 2010 Act is introduced by certain 'founding principles'. Those princi-
ples are three in number:
1. thattheobjectofarbitrationistoresolvedisputesfairly,impartiallyandwithout
unnecessary delay or expense,
2. thatpartiesshouldbefreetoagreehowtoresolvedisputessubjectonlytosuch
safeguards as are necessary in the public interest, and
3. that the court should not intervene in an arbitration except as provided by the
2010 Act.
17.2.2 Section 3 - Seat of Arbitration
Section 3 provides that an arbitration is 'seated in Scotland': (a) if Scotland is
designated as the juridical seat of the arbitration by the parties/by any third party
given power to so designate/where the parties failed to designate or so authorize a
third party, by the Tribunal or (b) in the absence of any such designation, the Court
determines that Scotland is to be the juridical seat of the arbitration. Section 3(2)
makes the important point that the fact that an arbitration is seated in Scotland does
notafectthesubstantivelawtobeusedtodecidethedispute.
