Domestic Arbitration Flashcards
Historical background of Arbitration
- Arbitration likely existed in Scotland before public courts, particularly in mercantile matters and cases requiring specialized knowledge or desiring privacy.
- Utility of arbitration was at risk due to court challenges on the grounds of iniquity or considerable injury, making awards practically open to review in every case.
- The 25th Act of the Articles of Regulation 1695 addressed this issue, limiting grounds for challenging arbitration awards to corruption, bribery, or falsehood, restoring arbitration’s natural force and finality.
- The position of an Arbiter’s decision being final in fact and law was modified in relatively recent times, allowing Arbiters to state a case for the Court of Session’s opinion on legal questions (Administration of Justice (Scotland) Act 1972, Section 3).
- The Arbitration (Scotland) Act 2010 repealed the 25th Act of the Articles of Regulation 1695 and Section 3 of the Administration of Justice (Scotland) Act 1972, introducing new arbitration procedures.
Definition of Arbitration
- Arbitration is a dispute resolution method where parties in disagreement voluntarily submit their dispute to one or more individuals, known as “arbiters”, instead of resorting to courts of law.
- It involves the adjudication of disputes on facts, law, or both, outside the ordinary civil courts by individuals chosen by the parties.
- Arbitration is primarily a procedure for resolving disputes, resulting in a decision, and while it is a form of adjudication, it is separate from the ordinary court system.
Elements of Ordinary Arbitration
- Ordinary arbitration involves two or more parties voluntarily agreeing to refer a dispute or question to a third party, the arbiter, whose jurisdiction is limited by the terms of the reference and is subject to supervision by ordinary courts.
- The arbiter must decide the dispute or question by issuing one or more awards, also known as decrees arbitral.
- Arbitration arises out of a contract and allows private parties to exclude the merits of any dispute from the court’s consideration by naming an arbiter.
- While the court’s jurisdiction to decide the merits of the case is excluded, it remains free to pronounce a decree in conformity with the arbiter’s award.
- The arbiter is responsible for ensuring equal justice between the parties and maintaining their equal rights to inform the arbiter’s decision-making process.
- In the Arbitration (Scotland) Act 2010, the term ‘arbitrator’ is used instead of ‘arbiter’ and is commonly used in most other countries.
- Additionally, the term ‘adjudication’ in the context of arbitration definitions should not be confused with adjudication arising from the Housing Grants, Construction and Regeneration Act 1996, as amended.
Absence Of Proper Statutory Framework for Arbitration
- Before the Arbitration (Scotland) Act 2010, the Scots law of arbitration was based primarily on common law, with minimal statutory influence.
- Key pre-2010 statutory provisions included the Arbitration (Scotland) Act 1894, the Administration of Justice (Scotland) Act 1972, and the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.
- The lack of a codifying statute led to controversy and a decline in commercial arbitration in Scotland.
- To address the issue, a committee was established to review and recommend changes to provide a modern and effective arbitration framework.
- Although the committee produced a report and draft Arbitration Bill, no parliamentary time was found to introduce new legislation.
- As a result, arbiters had to rely on practical means, such as arbitration clauses, deeds of appointment, or adopting a set of rules, to alter the legal rights and obligations of the parties.
UNICITRAL Model Law
- Before the 2010 Act, Scotland adopted the UNCITRAL Model Law for all international commercial arbitrations through Section 66 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.
- This made Scotland an attractive forum for parties considering multiple jurisdictions for arbitration proceedings.
- Parties to non-international commercial arbitrations could also benefit from the Model Law by agreeing to its provisions.
- A commercial dispute between a Scottish and non-Scottish legal entity could give rise to an international commercial arbitration to which the Model Law would apply.
- The scope of the Model Law was defined by Article 1, Sub-paragraph (3), which detailed the criteria for an arbitration to be considered international.
Contractual Nature of Arbitration
- Before the 2010 Act, the Scottish system of arbitration was mainly based on the contractual nature of arbitration, with limited legislative impact.
- Parties could choose arbitration over court proceedings and decide on the procedure to govern the arbitration, for example, by using rules.
- They could agree to refer disputes to arbitration at different stages of their relationship or legal proceedings.
- Once an agreement to refer disputes to arbitration was reached, either party could enforce it, and a Scottish Court would typically have no choice but to suspend any related court action.
- However, the right to arbitrate could be lost if the court process was used in a way that showed an intention not to arbitrate, potentially leading to a plea of waiver.
Arbitrable Issues
- Arbitrable issues in Scottish law generally involve matters that parties have a dispute over and possess sufficient power of disposal.
- These issues may arise from various types of contracts relating to land, structures, corporeal or incorporeal movable property.
- A dispute usually requires disagreement, but in some cases, a lack of response after a period of time may be considered a dispute.
- Certain matters cannot be referred to arbitration, such as those involving the public interest (e.g., paternity, legitimacy, marriage, divorce, domicile), whether someone has committed a crime, or transactions that are illegal and unenforceable.
- However, at common law, an arbiter could consider questions of fraud if necessary to settle the primary issue.
- The question of whether a dispute is arbitrable arises frequently in various contracts, leading to numerous cases.
Scope of Arbitration
- The scope of an arbitration depends on what the parties have agreed upon.
- An arbiter has jurisdiction and power only over specific questions submitted to them by the parties.
- In some cases, a court may still have jurisdiction in a dispute where certain questions have been referred to arbitration but do not resolve the entire dispute.
- In such circumstances, the court may pronounce a decree in the action, provided it aligns with the arbiter’s awards.
- Courts often sist (suspend) actions until arbitration-resolved questions are settled.
Relationship with Courts
- Before the 2010 Act in Scotland, there was no appeal against an arbiter’s decision on points of law or questions of fact.
- The only remedies available were reduction (due to breach of natural justice or acting out with jurisdiction) or judicial review.
- Arbiters exercised a subordinate jurisdiction to courts under their supervision.
- Courts provided support to the arbitration process through citation of witnesses, recovery of documents, diligence execution, enforcement of decrees, stated cases, suspension, interdict, reduction, judicial review, and removal of arbiter.
- Parties to civil disputes in Scotland had a choice between courts of law and arbitration. In construction contracts, adjudication is also available.
- Although arbitration is not always cheaper and more efficient, it is common for parties to incorporate arbitration clauses in construction contracts.
- The Scottish Building Contract Committee’s standard form documents often included arbitration clauses, but earlier forms placed greater emphasis on court procedures.
- The 2010 Act rectified the absence of up-to-date arbitration law in Scotland.
Raising Arbitration Proceedings
- Submission to Arbitration: Arbitration can be initiated through a preliminary notice or a submission to arbitration. The notice should outline the dispute, the agreement to arbitrate, the scope of the arbitration clause, and the appointment of an arbiter.
- Choice of Arbiter:The arbiter should be qualified and impartial. If the parties cannot agree on an arbiter, a court or professional body may appoint one.
- Procedure: The arbiter has the power to decide on the arbitration procedure, but must act fairly, diligently, and in accordance with the law and the contract. Pleadings and further procedures are usually discussed with the parties.
- Witnesses: The arbiter can allow witnesses but cannot force them to appear or produce evidence; a court order may be necessary in such cases.
- Proof: The arbiter must give all parties a fair hearing and consider all relevant evidence before making a decision.
- The Award: The arbiter’s award should be final and conclusive. Parties can challenge the decision only through reduction or judicial review in limited circumstances. The award can be enforced through registration in court or by obtaining a court order.
The Law Applicable to the Arbitration
- If there is a provision in the contract, it will determine the applicable law for the arbitration proceedings.
- In the absence of such a provision, the law of the place where the arbitration proceedings are held will apply at common law.
- It is an open question in Scotland whether parties can choose a law different from the law of the place where the proceedings take place, but there is a practical need for local court support.
- It is important to distinguish between the law applicable to the contract (determining the parties’ substantive rights and obligations) and the law applicable to the arbitration proceedings, as they can be different.
Arbiter’s Powers
Before the 2010 Act, the main disadvantage of the Scottish arbitration system was the limited powers held by arbiters at common law. As they are appointed by the parties involved in a dispute, their powers are limited to matters that can be legally contracted between the parties. Arbiters cannot compel third parties to join proceedings or witnesses to attend hearings. Important limitations of an arbiter’s powers at common law include:
- Damages: Arbiters had no power to award damages (including interest) unless expressly given.
- Interest: Generally, arbiters could not award interest from a date earlier than their decree arbitral or award.
- Rectification: In Scotland, arbiters had no common law power to order rectification of a contract, which was a court’s jurisdiction.
- Decree by Default: It was unclear if arbiters had the power to pronounce a decree by default when one party ignored the arbiter.
The Scottish Arbitration Code (or similar rules) helped overcome difficulties in relation to arbiters’ powers before the 2010 Act.
Termination of Arbitration Contracts and Proceedings
- By performance: Upon issuing the final award, the arbiter is considered functus officio, provided all matters referred to them have been addressed.
- Termination by lapse of time: If the submission contained an expiry date, it would expire on that day. If the expiry date was left blank, the primary obligations under the contract expired at the end of a year and a day, unless there was a valid extension. The submission could continue by express or implied agreement of the parties. Without provisions relating to the duration, the submission remained valid until the award was pronounced or the period of long negative prescription (20 years) expired.
- Termination by death of submitter or arbiter: The position should be covered by a provision in the submission.
- Termination by agreement or abandonment: The arbiter may still have administrative duties to attend to after parties have settled between themselves, such as handling expenses or issuing a final award.
- Termination by supervening impossibility: Frustration or illegality of performance can lead to termination.
Award Writing (before the 2010 Act)
Three principal types of awards were recognized by Scots common law:
1. Interim awards: Provisional determinations, subject to recall or alteration by subsequent interim or final awards.
2. Part awards: Conclusive and irrevocable decisions on only part of the matters submitted.
3. Final awards: Irrevocable decisions on a matter or matters covered by the award. All terminating awards are final, but a final award is not necessarily a terminating award.
Alternative and conditional awards were possible but unusual. The form of a Scottish decree arbitral usually comprised three principal elements:
a) Introductory or narrative clause: Narrates parties, arbiter’s name and appointment, contract, questions submitted, and history of the proceedings.
b) Adjudication clause: Narrates arbiter’s decision upon submitted matters, clarifying if the award is final, interim, or part. Reasons for the decision are appended in a Note of Reasons.
c) Testing clause: Narrates date and place of signature, name and designation of any witness.
Arbiters should give their reasons for reaching decisions where it is reasonable to do so, even if not legally obligated.
Validity of an Award:
For a decree arbitral to be considered valid, it must satisfy legal requirements concerning (a) form and (b) substance.
(a) Form of a Decree Arbitral:
- Prior to the 2010 Act, a decree arbitral had to be in writing and signed by the Arbiter.
- The Requirements of Writing (Scotland) Act 1995 specifies the criteria for a document to be formally valid and self-proving.
- The award must be issued by delivering it to the parties, registering it in the court’s books for preservation and execution, or delivering it to the clerk under specific circumstances.
(b) Substantive Requirements:
- A decree arbitral must be complete, self-contained, and self-explanatory.
- The decree arbitral must be certain, with clear and unambiguous language.
- A decree arbitral must exhaustively address the reference, leaving no disputed matters undecided.
- A decree arbitral cannot be ultra fines compromissi, meaning it cannot stray beyond the terms of the matters detailed in the submission.
An award must be possible and consistent; it cannot be impossible to perform or contain internal inconsistencies.
Awards Of Interest by an Arbiter
The powers of an Arbiter to deal with interest, the rate at which interest runs, and the date from which interest runs as an Arbiter’s award.
Key Points:
- An Arbiter’s power to deal with interest depends on the contract or the deed of submission. If there is no specific provision, there might be an implied power at common law, but this is not guaranteed.
- If there is a contractual or agreed rate of interest, that is the rate the Arbiter should award. If there is no such rate, the Arbiter has discretion to award interest at a reasonable rate, which could be the judicial rate.
- In determining the date from which interest runs, the concept of “wrongful withholding” is important. In general, an Arbiter cannot award interest before the date of the decree arbitral unless there has been a wrongful withholding or a judicial demand has been served before the arbitration proceedings.
However, the rate of interest awarded and the date from which it runs are ultimately subject to the Arbiter’s discretion, as long as they consider all relevant circumstances.
Arbiter Had to Be Given Specific Power To Award Damages For Breach Of Contract And Interest Thereon
- An arbiter can only award damages for breach of contract and interest thereon if specifically empowered by the parties.
- This power is typically included in the arbitration clause in the contract, the Deed of Appointment or Submission, or by using relevant rules, such as the Scottish Arbitration Code.
- This differs from courts, which have statutory authority to award interest on damages.
Power Of Arbiter to Award Expenses
- An arbiter has the implied power at common law to award expenses, and must follow any specific provisions regarding expenses in the submission.
- The overriding principle is that expenses follow success, meaning the successful party should be awarded the expenses of the submission.
- However, there are circumstances that can justify departing from this general rule, such as the otherwise successful party failing in a significant matter, excessive use of professional advisers or witnesses, or unreasonable behavior increasing the costs for the other party.
- In building and engineering cases, it may be appropriate to consider each issue individually, reflecting mixed success or neutral outcomes in separate awards of expenses, with numerous permutations depending on the circumstances.
- Arbiter’s implied power to award expenses at common law
- Must follow specific provisions in submission
- Principle: expenses follow success
Exceptions to general rule:
* Successful party fails in significant matter
* Excessive use of professional advisers or witnesses
* Unreasonable behavior increasing costs
Building/engineering cases:
* Consider issues individually
* Reflect mixed success/neutral outcomes
* Separate awards of expenses
* Various permutations based on circumstances
Effect of Tender
- A “judicial tender” is a formal document in which a party offers to pay a sum to the other party, usually without admitting liability, in full and final settlement of the claim.
- It must include interest and an offer to pay the costs or expenses up to the date of the tender.
- The tender can significantly impact a party’s entitlement to expenses.
- If the tendered sum is more than or equal to the sum the arbiter awards, the successful party is liable for the expenses of both parties from the date when the tender should have reasonably been accepted.
- If the tendered sum is less than the awarded sum, the unsuccessful party is liable for the whole expenses of both parties.
- The onus is on a potentially liable party to lodge a tender early to stop expenses from accruing.
- An arbiter may also consider extra-judicial offers when exercising discretion in awarding expenses.
- “Judicial tender”: formal document offering payment without admitting liability
- Includes interest, offer to pay costs/expenses up to tender date
- Impacts party’s entitlement to expenses
- Tender ≥ awarded sum: successful party pays both parties’ expenses from reasonable acceptance date
- Tender < awarded sum: unsuccessful party pays both parties’ total expenses
- Early tender lodgment stops expense accrual
- Arbiter may consider extra-judicial offers in expense awards
Extra-judicial = actions or processes occurring outside formal legal proceedings or the court system (alternative dispute resolution methods - negotiation or mediation).
Taxation of Expenses
- At common law, if an arbiter does not specify the amount of expenses in an award, the expenses need to be taxed during the submission’s subsistence for the award to be enforced.
- Taxation can be done by a particular person, often the Auditor of Court, and is considered a purely administrative act.
- The Court Auditors usually tax accounts on a “party/party” basis, meaning they only allow recovery of expenses reasonably incurred by the successful party.
- Another basis of taxation is “Agent (or Solicitor)/client,” which is more favorable for the successful party as it allows for recovery of additional expenses.
- If the parties haven’t agreed on the taxation basis in the submission or subsequently, the arbiter usually defaults to the “party/party” basis unless there are special reasons to do otherwise.
- Common law: unspecified expenses in award require taxation for enforcement
- Taxation: administrative act, often by Auditor of Court
- “Party/party” basis: recovery of reasonable expenses for successful party
- “Agent/Solicitor/client” basis: more favorable, allows additional expense recovery
- Absent agreement on taxation basis, arbiter defaults to “party/party” unless special reasons exist
Taxation of expenses = refers to assessing and determining parties’ legal fees and costs, not a tax like VAT. A neutral third party, like an Auditor of Court, evaluates submitted expenses to decide reasonable amounts for awarding or reimbursement.
Certification of Arbitration as suitable for the employment of counsel and certification of experts
- An arbiter may be asked to certify an arbitration as suitable for the employment of counsel.
- This is important because the successful party can only recover the cost of counsel if the arbiter certifies the arbitration as suitable.
- The arbiter should consider the whole circumstances, including the complexity of the issues, when making this decision.
- As for expert witnesses, the arbiter must also certify them to allow the successful party to recover their expenses.
- The arbiter should consider the reasons for employing the expert and the nature of their evidence to determine if instructing an independent expert was reasonable.
- Arbiter may certify arbitration for counsel employment
- Certification needed for successful party to recover counsel costs
- Consider complexity, circumstances for certification
- Expert witnesses require arbiter certification for expense recovery
- Arbiter evaluates expert’s employment reasons and evidence nature to assess reasonableness
Employment of counsel = hiring a legal representative to provide expert advice and representation during the dispute resolution process. The successful party may recover counsel costs if the arbiter certifies the arbitration as suitable for counsel employment.
The Stated Case - Introduction
Key for exam!
- Before the 2010 Act, the decision of an arbiter was final on questions of law and fact, but the Administration of Justice (Scotland) Act 1972 allowed for a stated case for the opinion of the Court of Session on questions of law.
- However, the stated case procedure was slow, expensive, and had to be requested before the final award was made.
- The standard practice before the 2010 Act was to request proposed findings from the arbiter to overcome the limitations.
Key for exam!
A stated case is a written statement of facts and legal questions prepared by an arbiter, which is then submitted to a court for guidance on the legal matters involved.
Before stated case introduction:
* Arbiters relied on own understanding or informal advice
* Parties challenged awards in court post-arbitration
Stated case procedure:
* Allows arbiters to seek authoritative legal guidance during arbitration
* Promotes fairness, consistency, and efficiency
Proposed findings = parties could request proposed findings from the arbiter, asking for a preliminary opinion on specific issues. This allowed parties to address concerns, present evidence, or make arguments before the final award
The Stated Case - Illustrations of use
Two cases illustrate the use of stated cases: Balfour Kilpatrick Limited v Melville Dundas & Whitson Limited (1987) and Grahame House Investments Limited v Secretary of State for the Environment (1985).
- Balfour Kilpatrick and Grahame House cases: arbiters sought court opinions via stated cases for legal provision disputes
- Stated cases: tool for authoritative legal guidance amid uncertainty or multiple interpretations
- Ensures arbiter decisions align with legal principles and case law, promoting fairness and consistency in arbitration
The Stated Case - Competency
- In the case of John G. McGregor (Contractors) Ltd. v Grampian Regional Council, the claimants and respondents requested the arbiter to state a case on various questions.
- The arbiter agreed to state a case on some, but not all, questions.
- The respondents sought an order requiring the arbiter to state a case on the remaining questions, while the claimants argued that the proceedings were incompetent and that they could challenge the arbiter’s decision on two questions.
- The court held that the respondents were entitled to present a note under rule 278 for an order requiring the arbiter to state a case on the unanswered questions, and that the claimants had no right to challenge the arbiter’s decision to state a case on the two questions, as the other party cannot claim that the arbiter should not have done so.
- John G. McGregor (Contractors) Ltd. v Grampian Regional Council: clarifies ‘competency’ in stated cases under which stated cases are deemed competent or admissible for consideration by the court.
- Stated case is competent for questions of law, not fact
- Arbiter uses stated case only for genuine legal uncertainties - highlights the limited scope of stated cases in arbitration proceedings
- Maintains arbitration efficiency and autonomy while allowing guidance on complex legal issues
The Stated Case - No appeal from division of court of session to house of lords
- The Division of Court of Session does not allow appeal to the House of Lords in all cases.
- Under Section 40(1) of the Court of Session Act 1988, appeals can be made without leave of the Inner House against judgments on the whole merits of a cause or specific interlocutory judgments.
- With the leave of the Inner House, appeals can be made against other interlocutory judgments.
- In the case of John G McGregor (Contractors) Ltd v Grampian Regional Council, the House of Lords dismissed the petition of appeal as the Court’s opinion did not constitute a judgment under the relevant Acts.
- Not all cases appealed to House of Lords
- Section 40(1): appeals without Inner House permission for whole merits or specific interlocutory judgments
- Other interlocutory judgments required Inner House leave
- John G McGregor v Grampian Regional Council: appeal dismissed, court’s opinion didn’t qualify as judgment under relevant Acts
Interlocutory judgments = decisions on particular legal issues within the case, made before the final resolution
The Stated Case - E.C. Law
- EC Law and the Preliminary Rulings Procedure (Article 177 of the Treaty of Rome) provide a way for national courts or tribunals to request a preliminary ruling from the Court of Justice when questions of EC Law arise.
- This is not an appeal procedure but assists in the interpretation or validity of EC Law.
- Courts or tribunals may request a ruling if a decision on the question is necessary for their judgment, and those without judicial remedy under national law must bring the matter before the Court of Justice.
- It is unclear if an Arbiter can obtain a ruling under Article 177, but a possible course of action could involve stating a case on the question for the Court of Session’s opinion, leaving the decision to refer the matter to the Court of Justice to that Court.
- Before the 2010 Act, Article 177 of Treaty of Rome allowed national courts to request preliminary rulings from the Court of Justice for EC Law questions
- Not an appeal procedure, assists in interpreting or validating EC Law
- Request made if necessary for judgment or when lacking judicial remedy under national law
- Unclear if arbiter could directly obtain ruling under Article 177; possible solution: state case for Court of Session’s opinion, leaving referral decision to that court
The Stated Case - Refusal by arbiter to state a case – procedure
In Gunac v Inverclyde District Council, the court held that the certificate of refusal to state a case conformed with the requirements, and the claimants failed to show why a case should not be stated. The prayer of the note was granted.
- Gunac v Inverclyde District Council: illustrates arbiter’s refusal to state a case in arbitration
- Arbiter refused as they believed legal issue was clear and within their expertise
- Demonstrates arbiter’s discretion to refuse stating a case when confident in their understanding and no court guidance needed
Thes Stated Case - Arbiter postponing stating a case
In Edmund Nuttall Ltd v Amec Projects Ltd, the court held that Rule of Court 277 applied to the obtaining of a stated case from an Arbiter, and the Court had the power to regulate the right of an Arbiter to state a case or the power of the Court to order him to do so. The petition was dismissed as incompetent.
- Edmund Nuttall Ltd v Amec Projects Ltd: illustrates arbiter postponing stating a case in arbitration
- Arbiter deferred seeking court’s opinion to focus on resolving factual issues first
- Demonstrates arbiter’s discretion to manage arbitration process efficiently and practically based on case circumstances
The Stated Case - Expenses
In the case Thomson v Galloway about expenses, the court held that the scope of an Arbiter’s powers was a question of construction of the Deed of Submission in each case, and it was open to the Arbiter to pronounce a decree arbitral on expenses at a later date. The reclaiming motion was refused.
- Thomson v Galloway illustrates arbiter’s powers depend on Deed of Submission interpretation in each case
- Court found arbiter could pronounce decree arbitral on expenses at later date
- Reclaiming motion refused, as arbiter acted within their powers per Deed of Submission
- Demonstrates arbiter’s authority to award expenses relies on interpreting Deed of Submission, and they can issue a decision on expenses later if it aligns with the terms
Deed of Submission = a written agreement in arbitration that outlines the terms, conditions, and procedures for resolving a dispute, including the appointment and powers of the arbiter(s).
The Stated Case - Summary
- A party to an arbitration, when challenging by means of stated case had therefore to live with the Arbiter’s findings in fact, formulate precisely the questions of law and abide by the statutory procedure.
- A party to an arbitration therefore had to know his three “p’s” - punctuality, precision and procedure
- In John L. Haley Ltd. v Dumfries & Galloway Regional Council, the claimants’ late application for a stated case was refused.
- The court emphasized the importance of adhering to time limits in arbitration proceedings, and solicitors’ oversight was not considered a valid excuse.
Grampian Regional Council v Cormie
Stated case – competency
- The Grampian Regional Council v Cormie case involves a dispute between a contractor (C) and an employer (G), which was submitted to arbitration.
- The case was significant for the concept of ‘competency’ under the stated case procedure in arbitration proceedings.
- The Inner House of the Court of Session granted leave to appeal to the House of Lords, but C argued that no such appeal was competent and that the arbiter was bound to give effect to the opinion of the Court.
- The Court refused C’s motion, as they could not determine the issue of competency at that stage, and the balance of convenience favored G.
- Case highlights the complexities surrounding the competency of appeals in stated case procedures during arbitration proceedings.
- The court’s decision emphasizes the importance of considering the proper channels for appeal and the potential consequences of prematurely moving forward with a decree-arbitral.
Judicial Review - Introduction
- Court of Session has common law jurisdiction to supervise inferior tribunals, including arbitral tribunals (Forbes v. Underwood, 1886)
- Significant developments in judicial review (JR) in England and Scotland followed Brown v. Hamilton District Council (1983) and Dunpark Committee recommendations
- Court of Session Rules, Chapter 58, outlines JR procedure in Scotland
- Under Chapter 58 to have locus standi, a person must show title and interest (e.g., being a party to arbitration)
- Petitioners can seek interdict, suspension, reduction, or removal on various grounds
- Petitions can be refused for reasons like delay or lack of a prima facie case
- Judicial review applies to both public and private law cases, as decided in Yest v. Secretary of State for Scotland (1992)
