Civil Engineering Reference
In-Depth Information
17.2.3 Section 4 - Arbitration Agreement
Section 4 defines an 'arbitration agreement' as an agreement to submit a present or
future dispute to arbitration including any agreement which provides for arbitration
in accordance with the arbitration provisions in a separate document.
17.2.4 Section 5 - Separability
Section 5 of the 2010 Act provides that an arbitration agreement which forms (or was
intendedtoform)partonlyofanagreementistobetreatedasadistinctagreement.An
arbitration agreement is not void, voidable or otherwise unenforceable only because
the agreement of which it forms part is void, voidable or otherwise unenforceable.
A dispute about the validity of an agreement which includes an arbitration agree-
ment may be arbitrated in accordance with that arbitration agreement.
17.2.5 Section 6 - Law Governing Arbitration Agreement
Where (a) the parties to an arbitration agreement agree that an arbitration under
thatagreementistobeseatedinScotland,but(b)thearbitrationagreementdoes
not specify the law which is to govern it, then, unless the parties otherwise agree, the
arbitration agreement is to be governed by Scots law.
17.2.6 Sections 7 to 9: 9:The mandatory and default rules
The 2010 Act sets out certain mandatory and default rules which are to apply to any
arbitration seated in Scotland. The rules are known as the Scottish Arbitration Rules.
The 'mandatory rules' cannot be modified or disapplied by an arbitration agreement,
by any other agreement between the parties or by any other means.
The non-mandatory rules are called 'default rules'. A default rule applies in rela-
tion to an arbitration seated in Scotland only insofar as the parties have not agreed
to modify or disapply that rule (or any part of it) in relation to that arbitration. The
parties may so agree (a) in the arbitration agreement or (b) by any other means at any
time before or after the arbitration begins. Parties are to be treated as having agreed
to modify or disapply a default rule:
(a) if or to the extent that the rule is inconsistent with or disapplied by (i) the
arbitration agreement; (ii) any arbitration rules or other document, for
example, the UNCITRAL Model Law, the UNCITRAL Arbitration Rules or
other institutional rules which the parties agree are to govern the arbitration
or anything done with the agreement of the parties; or
(b) if they choose a law other than Scots law as the applicable law in respect of the
rules' subject matter.
