Arbitration - Scottish Construction Contracts - page 393

an arbiter had power to make part awards. Recently, the Inner House of the Court of
Session appeared to indicate that such a power did exist at common law, see Apollo
Engineering Ltd v .JamesScottLtd . (2009).
Rule 58: Correcting an award: DEFAULT
The tribunal may correct an award so as to:
(a) correct a clerical, typographical or other error in the award arising by virtue of
accident or omission; or
(b) clarify or remove an ambiguity in the award.
Such a correction may be made at the tribunal's own initiative (within 28 days of the
award concerned being made) or upon an application by any party. Such an applica-
tion is valid only if made within 28 days of the award concerned or by such later date
astheOuterHouseorSherifonapplicationmayallow.Notestsorcriteriaaresetout
which the Court is to apply in determining whether to allow correction at 'such later
date'. It is submitted that the wording of limb (a) is problematic because, arguably, it is
wide enough to cover errors beyond those of a mere clerical or typographical nature
and the extent of that may leave room for dispute.
Rules 59-62 inclusive deal with the expenses (costs) of the arbitration, including
the Arbitrator's fees and expenses and what expenses are recoverable by one party
from the other.
Rule63:Banonpre-disputeagreementaboutliabilityforexpenses:
MANDATORY
Any agreement allocating the parties' liability between themselves for any or all of
the arbitration expenses has no effect if entered into before the dispute being arbi-
trated has arisen. This mandatory rule would, for example, outlaw any attempt in the
underlying contract to make the claimant liable for the respondent's expenses in the
arbitration irrespective of the claimant's success in the arbitration. The provision was
apparently inserted in light of such attempts in adjudication clauses in construction
contracts.
Rule 64: Security for expenses: DEFAULT
The tribunal may order a party making a claim to provide security for recoverable
arbitration expenses. This is an important new power because it was not available at
common law. The rule sets down certain circumstances in which such an order may
not be made, but otherwise it contains no test or criteria to be satisfied before the
arbitrator should make such an order.