Civil Engineering Reference
In-Depth Information
Rule 39: Failure to comply with tribunal direction or arbitration agreement:
DEFAULT
If a party fails to comply with an order made under this rule, the tribunal may (a)
direct that the party is not entitled to rely on any allegation or material which was the
subject matter of the order; (b) draw adverse inferences from the non-compliance; (c)
proceedwiththearbitrationandmakeanaward;or(d)makesuchprovisionalaward
(including an award of expenses) as it considers appropriate in consequence of the
non-compliance.
Rule 40: Consolidation of proceedings: DEFAULT
Parties may agree to consolidate the arbitration with another arbitration or to hold
concurrent hearings. The tribunal may not do so on its own initiative. Although not
expressly stated, it appears that where the parties are different in the arbitrations, the
consent of all parties would be required. The need for agreement will considerably
limittheutilityofthisRule.
Rule 41: Power of Court to decide point of law: DEFAULT
The Outer House of the Court of Session may, on an application by any party, deter-
mine any point of Scots law arising in the arbitration. his a default rule but if it applies
in a particular arbitration the procedure set down in Rule 42 is mandatory.
Rule 42: Point of law referral: MANDATORY
An application is valid only if:
(a) the parties agreed that it be made; or
(b) the tribunal has consented to it being made and the Court is satisfied that:
(i) determining the question is likely to produce substantial savings in
expenses;
(ii) theapplicationwasmadewithoutdelay;and
(iii) there is good reason why the question should be determined by the Court.
The tribunal may continue with the arbitration pending the determination of the
application. he Outer House's determination of the question is final as is any decision
bytheOuterHouseastowhetheranapplicationisvalid.
This procedure is a complete innovation of the position before the 2010 Act. Tra-
ditionally, arbitration had been seen as a process under which the arbitrator deter-
mined both disputes of fact and law between the parties (if necessary by obtaining
expert assistance on any technical or legal issues outwith the arbitrator's normal area
of expertise). This procedure takes place during the currency of the arbitration and it
