Arbitration Flashcards
What is the main legislation in Scotland regarding arbitration?
The Arbitration (Scotland) Act 2010
What is purported to be the most popular Scottish case law in respect of arbitration and conflict of laws?
Hamlyn & Co vs Talisker Distillery
(1894, House of Lords)
What was the significance of the Hamlyn & Co vs Talisker Distillery ruling (1894)?
Conflict of laws/jurisdictions
In short, that the intention of the contract be honoured.
Specifically, the arbitration clause included was not valid under Scots law but perfectly valid under English law and therefore was upheld.
There is specifically a** validation principle** - see also Enka vs Chubb [2020]
What was the official ruling of Hamlyn & Co vs Talisker Distillery?
*Where a personal contract is entered into
between persons residing in different countries where different systems of law prevail,
the intention of the parties as expressed or implied in the contract
will determine the system by which the whole or any part of the contract
is to be interpreted and governed.*
What were the main objectives of the Arbitration (Scotland) Act 2010?
- Clarify, modernise and consolidate Scottish Arbitration law, filling in gaps.
- Provide a statutory framework for arbitrations which operate in the absence of an agreement to the contrary.
- To ensure fairness and impartiality
- Minimise expense and ensure efficiency
Why did Scotland get the Arbitration (Scotland) Act 2010?
Devolved minority government wanted to take up parliamentary time passing non-contentious legislation.
Scotland has some of the most up to date arbitration legislation in the world as a result.
A lucky accident!
When was the Arbitration (Scotland) Bill passed?
30 January 2009
Terminology - what is the name for the decision maker in Scottish arbitration, before and after the Arbitration (Scotland) Act 2010?
Arbitrator (in line with other jurisdictions)
Before the Act, Arbiter (Scottish hangover).
When did the Arbitration (Scotland) Act 2010 come into force?
5 Jan 2010 - for Section 2 definitions
7 Jun 2010 - the rest
BUT transition arrangement applied for agreements entered into before the Act came into force…
What are the three founding principles of the Arbitration (Scotland) Act 2010?
- FAIRNESS: The object is to resolve disputes fairly, impartially and without undue delay or expense.
- AUTONOMY: The parties should be free to agree how to resolve, subject to safeguards necessary for the public interest.
- NON-INTERVENTION: The court should not intervene in an arbitration except as provided in the Act.
On what three grounds can an arbitral award be challenged?
- Lack of jurisdiction
- Breach of natural justice on the part of the tribunal
- Appeal on errors of law (if relevant default rule applies)
What is the New York Convention?
An international treaty governing the recognition and enforcement of foreign arbitral awards.
What types of cases cannot be resolved by arbitration?
- Criminal cases
- Public interest
- Paternity
- Divorce
- Legitimacy of children
- Domicile status
Construction is fine :)
What characterises mandatory rules for arbitration in Scotland?
Just as it says on the tin - cannot contract out of the mandatory rules
What characterises default rules for arbitration in Scotland?
Rules which can be disapplied or modified.
Take care if modifying, in case of unintended consequences.
All default rules apply unless agreed otherwise during contract negotiations.
What is rule 40 of the Arbitration (Scotland) Act 2010 in relation to other arbitrations?
(lecturer says need to know)
(1) Parties may agree—
(a) to **consolidate** the arbitration with another arbitration, or (b) to hold **concurrent** hearings.
(2) But the tribunal may not order such consolidation, or the holding of concurrent hearings, on its own initiative.
What is the basis of rule 28 of the Arbitration (Scotland) Act 2010, dealing with evidence?
(ask who what when where how?)
(1) It is for the tribunal to determine—
(a) the **procedure** to be followed in the arbitration, and (b) the **admissibility, relevance, materiality and weight of any evidence**.
When and where? Disclosures of evidence? Language of arbitration? Format of arbitration (hearing, written or oral etc)
What is the basis of rule 48 of the Arbitration (Scotland) Act 2010, dealing with payment and damages?
The tribunal’s award may order the payment of a sum of money (including a sum in respect of damages).
What is the basis of rule 50 of the Arbitration (Scotland) Act 2010, dealing with Interest?
1) Can award interest
2) May specify different interest rate and period for part awards
What is the basis of rule 54 of the Arbitration (Scotland) Act 2010, dealing with part award?
1) Can have part awards at different times and on different aspects of the matter.
2) A “part award” is an award which decides some (but not all) of the matters.
3) A part award must specify the matters to which it relates
Mandatory
What is the basis of rule 76 of the Arbitration (Scotland) Act 2010, dealing with the loss of right to object?
- Objections can be in relation to POJIFE:
** a) jurisdiction,
b) impartiality,
c) fairness,
d) eligibility of arbitrator
e) Procedural irregularity
f) Other irregularity
etc** - Objections must be made timeously
‘Timeous’ means as soon as reasonably practicable, unless determined otherwise in the arbitration agreement or by the tribunal.
If not raised timeously, loss of right to object later, either with tribunal or court
What is another name for natural justice?
Procedural fairness
What are the principles of natural justice?
1) Rule against bias (decision makers should be impartial)
2) Right to a fair hearing (individuals should not be penalised by decisions affecting their rights unless they have been given notice and a chance to respond and present their case)
What is an arbitration tribunal?
A panel or one or more arbitrators assembled to resolve a dispute through arbitration.
Is arbitration legally binding?
Yes, unlike some other forms of ADR such as mediation.
Are arbitration hearings public or private?
Tend to be private, with evidence kept confidential.
Under the Arbitration (Scotland) Act 2010, confidentiality is statutory.
Which sectors see the most disputes go to arbitration?
Construction, energy, transport and commodities.
What are the options to enforce an arbitral award?
- With an order from the court (sheriff or Court of Session) as per section 12 of the Arbitration (Scotland) Act 2010
- Under the New York Convention
What are the key provisions of section 12 of the Arbitration (Scotland) Act 2010 dealing with enforcement of awards?
(ask who, what, when, where and why? or why not?)
- Either party can apply for a court order to enforce. Exceptions - no order possible if:
a) the award is subject to appeal or correction
b) the awarding tribunal did not have jurisdiction
- section 12 applies whether or not the arbitration was seated in Scotland.
What were the arbitrator’s powers in relation to awarding damages BEFORE the Arbitration (Scotland) Act 2010?
What were the arbitrator’s powers in relation to errors in law BEFORE the Arbitration (Scotland) Act 2010?
- Before 2 April 1973, decision of the Arbiter was final on points of law and fact.
- After this dates, parties could **state a case **on a point of law (under Section 3 of the Administration of Justice (Scotland) Act 1972).
- The government view was ‘Where an arbiter had made a patent error in law, it should be possible to correct that error on appeal’
- However, this was slow and expensive and undermined the purpose of arbitration.
What were the arbitrator’s powers in relation to errors in law AFTER the Arbitration (Scotland) Act 2010?
(who, what, when, where, why, how?)
The Act limits challenges to awards for error in law. An appeal can only be made either with:
- Agreement of the parties; or
- With the leave of the Outer House of the Court of Session (and then only in limited circumstances).
What is the appetite for appeal of an arbitral award in Scotland since the Arbitration (Scotland) Act 2010?
‘Scottish courts are unwilling to review the legal and factual basis of an arbitrator’s decision in all but the most exceptional cases’
The judge must be satisfied that the tribunal’s decision was “obviously wrong”
What were the arbitrator’s powers in relation to awarding damages AFTER the Arbitration (Scotland) Act 2010?
refine
Generally, what was the landscape of arbitration prior to the Arbitration (Scotland) Act 2010?
Uncertainty: A mixture of common law and statute, the legal position was unclear.
Not fit for purpose, out of date, inaccessible.
What are the requirements for an arbitration agreement to be enforceable under the Arbitration (Scotland) Act 2010?
Recognised under the Act whether oral or in writing BUT
- Separate laws may require agreement to be in writing
- A written agreement may be necessary for the resulting arbitral award to be enforceable
What were the arbitrator’s powers in relation to interim measures AFTER the Arbitration (Scotland) Act 2010?
The tribunal can:
- issue interim measures in relation to all or part of the subject matter of the arbitration.
- Grant any relief on a provisional basis that it has the power to grant permanently.
Interim measures, such as security for costs and inspection and preservation of evidence, are enforceable in the courts.
How many countries are party to the New York Convention?
172 nations.
What is an arbitration agreement?
Typically a clause in a broader contract where the parties agree to settle disputes through arbitration.
Can be separate to the main contract.
What was the purpose of the Stated Case procedure?
Prior to the Arbitration (Scotland) Act 2010 (and after 2 April 1973), it was the
means of appealing on the basis of an
arbiter’s error in law.
What were the main issues with the Stated Case procedure?
- Chicken-and-egg wording meant that it was not possible to challenge to seek a case after the award was made, and impossible to do so before knowing what the award would be.
- The duty of an arbiter to state a case applied ‘at any stage in the arbitration’
What was the workaround for the issues in the Stated Case procedure?
Parties requested proposed findings, so that they could have the opportunity to appeal within the letter of Section 3 the Adminstriation of Justice (Scotland Act) 1972.
