Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Arbitration (Scotland) Act 2010

Type Act of the Scottish Parliament

Publication 2010-01-05

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Introductory

Founding principles

1

The founding principles of this Act are—

(a) that the object of arbitration is to resolve disputes fairly, impartially and without unnecessary delay or expense,

(b) that parties should be free to agree how to resolve disputes subject only to such safeguards as are necessary in the public interest,

Key terms

2

(1) In this Act, unless the contrary intention appears—

“arbitration” includes—domestic arbitration,arbitration between parties residing, or carrying on business, anywhere in the United Kingdom, andinternational arbitration,

“arbitrator” means a sole arbitrator or a member of a tribunal,

“dispute” includes—any refusal to accept a claim, andany other difference (whether contractual or not),

“party” means a party to an arbitration,

“rules” means the Scottish Arbitration Rules (see section 7), and

“tribunal” means a sole arbitrator or panel of arbitrators.

(2) References in this Act to “an arbitration”, “the arbitration” or “arbitrations” are references to a particular arbitration process or, as the case may be, to particular arbitration processes.

(3) References in this Act to a tribunal conducting an arbitration are references to the tribunal doing anything in relation to the arbitration, including—

(a) making a decision about procedure or evidence, and

(b) making an award.

Seat of arbitration

3

(1) An arbitration is “seated in Scotland” if—

(a) Scotland is designated as the juridical seat of the arbitration—

(i) by the parties,

(ii) by any third party to whom the parties give power to so designate, or

(iii) where the parties fail to designate or so authorise a third party, by the tribunal, or

(b) in the absence of any such designation, the court determines that Scotland is to be the juridical seat of the arbitration.

(2) The fact that an arbitration is seated in Scotland does not affect the substantive law to be used to decide the dispute.

Arbitration agreements

Arbitration agreement

4

An “arbitration agreement” is an agreement to submit a present or future dispute to arbitration (including any agreement which provides for arbitration in accordance with arbitration provisions contained in a separate document).

Separability

5

(1) An arbitration agreement which forms (or was intended to form) part only of an agreement is to be treated as a distinct agreement.

(2) 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.

(3) A dispute about the validity of an agreement which includes an arbitration agreement may be arbitrated in accordance with that arbitration agreement.

Law governing arbitration agreement

6

Where—

(a) the parties to an arbitration agreement agree that an arbitration under that agreement is to be seated in Scotland, but

(b) the arbitration agreement does 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.

Scottish Arbitration Rules

7

The Scottish Arbitration Rules set out in schedule 1 are to govern every arbitration seated in Scotland (unless, in the case of a default rule, the parties otherwise agree).

Mandatory rules

8

The following rules, called “mandatory rules”, cannot be modified or disapplied (by an arbitration agreement, by any other agreement between the parties or by any other means) in relation to any arbitration seated in Scotland—

rule 3 (arbitrator to be an individual)

rule 4 (eligibility to act as an arbitrator)

rule 7 (failure of appointment procedure)

rule 8 (duty to disclose any conflict of interests)

rules 12 to 16 (removal or resignation of arbitrator or dismissal of tribunal)

rules 19 to 21 and 23 (jurisdiction of tribunal)

rules 24 and 25 (general duties of tribunal and parties)

rule 42 (point of law referral: procedure etc.)

rule 44 (time limit variation: procedure etc.)

rule 45 (securing attendance of witnesses and disclosure of evidence)

rule 48 (power to award payment and damages)

rule 50 (interest)

rule 54 (part awards)

rule 56 (power to withhold award if fees or expenses not paid)

rule 60 (arbitrators' fees and expenses)

rule 63 (ban on pre-dispute agreements about liability for arbitration expenses)

rules 67, 68, 70, 71 and 72 (challenging awards)

rules 73 to 75 (immunity)

rule 76 (loss of right to object)

rule 77 (independence of arbitrator)

rule 79 (death of arbitrator)

rule 82 (rules applicable to umpires)

Default rules

9

(1) The non-mandatory rules are called the “default rules”.

(2) A default rule applies in relation to an arbitration seated in Scotland only in so far as the parties have not agreed to modify or disapply that rule (or any part of it) in relation to that arbitration.

(3) Parties may so agree—

(a) in the arbitration agreement, or

(b) by any other means at any time before or after the arbitration begins.

(4) 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

(iii) 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 rule's subject matter.

This subsection does not affect the generality of subsections (2) and (3).

Suspension of legal proceedings

10

(1) The court must, on an application by a party to legal proceedings concerning any matter under dispute, sist those proceedings in so far as they concern that matter if—

(a) an arbitration agreement provides that a dispute on the matter is to be resolved by arbitration (immediately or after the exhaustion of other dispute resolution procedures),

(b) the applicant is a party to the arbitration agreement (or is claiming through or under such a party),

(d) the applicant has not—

(i) taken any step in the legal proceedings to answer any substantive claim against the applicant, or

(ii) otherwise acted since bringing the legal proceedings in a manner indicating a desire to have the dispute resolved by the legal proceedings rather than by arbitration, and

(e) nothing has caused the court to be satisfied that the arbitration agreement concerned is void, inoperative or incapable of being performed.

(2) Any provision in an arbitration agreement which prevents the bringing of the legal proceedings is void in relation to any proceedings which the court refuses to sist.

This subsection does not apply to statutory arbitrations.

(3) This section applies regardless of whether the arbitration concerned is to be seated in Scotland.

Enforcing and challenging arbitral awards etc.

Arbitral award to be final and binding on parties

11

(1) A tribunal's award is final and binding on the parties and any person claiming through or under them (but does not of itself bind any third party).

(2) In particular, an award ordering the rectification or reduction of a deed or other document is of no effect in so far as it would adversely affect the interests of any third party acting in good faith.

(3) This section does not affect the right of any person to challenge the award—

(a) under Part 8 of the Scottish Arbitration Rules, or

(b) by any available arbitral process of appeal or review.

(4) This section does not apply in relation to a provisional award (see rule 53), such an award not being final and being binding only—

(a) to the extent specified in the award, or

(b) until it is superseded by a subsequent award.

Enforcement of arbitral awards

12

(1) The court may, on an application by any party, order that a tribunal's award may be enforced as if it were an extract registered decree bearing a warrant for execution granted by the court.

(2) No such order may be made if the court is satisfied that the award is the subject of—

(a) an appeal under Part 8 of the Scottish Arbitration Rules,

(b) an arbitral process of appeal or review, or

which has not been finally determined.

(3) No such order may be made if the court is satisfied that the tribunal which made the award did not have jurisdiction to do so (and the court may restrict the extent of its order if satisfied that the tribunal did not have jurisdiction to make a part of the award).

(4) But a party may not object on the ground that the tribunal did not have jurisdiction if the party has lost the right to raise that objection by virtue of the Scottish Arbitration Rules (see rule 76).

(5) Unless the parties otherwise agree, a tribunal's award may be registered for execution in the Books of Council and Session or in the sheriff court books (provided that the arbitration agreement is itself so registered).

(6) This section applies regardless of whether the arbitration concerned was seated in Scotland.

(7) Nothing in this section or in section 13 affects any other right to rely on or enforce an award in pursuance of—

(a) sections 19 to 21, or

(b) any other enactment or rule of law.

(8) In this section, “court” means the sheriff or the Court of Session.

Court intervention in arbitrations

13

(1) Legal proceedings are competent in respect of—

(a) a tribunal's award, or

(b) any other act or omission by a tribunal when conducting an arbitration,

only as provided for in the Scottish Arbitration Rules (in so far as they apply to that arbitration) or in any other provision of this Act.

(2) In particular, a tribunal's award is not subject to review or appeal in any legal proceedings except as provided for in Part 8 of the Scottish Arbitration Rules.

(3) It is not competent for a party to raise the question of a tribunal's jurisdiction with the court except—

(a) where objecting to an order being made under section 12, or

(b) as provided for in the Scottish Arbitration Rules (see rules 21, 22 and 67).

(4) Where the parties agree that the UNCITRAL Model Law is to apply to an arbitration, articles 6 and 11(2) to (5) of that Law are to have the force of law in Scotland in relation to that arbitration (as if article 6 specified the Court of Session and any sheriff court having jurisdiction).

Persons who take no part in arbitral proceedings

14

(1) A person alleged to be a party to an arbitration but who takes no part in the arbitration may, by court proceedings, question—

(a) whether there is a valid arbitration agreement (or, in the case of a statutory arbitration, whether the enactment providing for arbitration applies to the dispute),

(b) whether the tribunal is properly constituted, or

and the court may determine such a question by making such declaration, or by granting such interdict or other remedy, as it thinks appropriate.

(2) Such a person has the same right as a party who participates in the arbitration to appeal against any award made in the arbitration under rule 67 or 68 (jurisdictional and serious irregularity appeals) and rule 71(2) does not apply to such an appeal.

Anonymity in legal proceedings

15

(1) A party to any civil proceedings relating to an arbitration (other than proceedings under section 12) may apply to the court for an order prohibiting the disclosure of the identity of a party to the arbitration in any report of the proceedings.

(2) On such an application, the court must grant the order unless satisfied that disclosure—

(a) is required—

(i) for the proper performance of the discloser's public functions, or

(ii) in order to enable any public body or office-holder to perform public functions properly,

(b) can reasonably be considered as being needed to protect a party's lawful interests,

(d) would be necessary in the interests of justice.

(3) The court's determination of an application for an order is final.

Statutory arbitration

Statutory arbitration: special provisions

16

(1) “Statutory arbitration” is arbitration pursuant to an enactment which provides for a dispute to be submitted to arbitration.

(2) References in the Scottish Arbitration Rules (or in any other provision of this Act) to an arbitration agreement are, in the case of a statutory arbitration, references to the enactment which provides for a dispute to be resolved by arbitration.

(3) None of the Scottish Arbitration Rules (or other provisions of this Act) apply to a statutory arbitration if or to the extent that they are excluded by, or are inconsistent with, any provision made by virtue of any other enactment relating to the arbitration.

(4) Every statutory arbitration is to be taken to be seated in Scotland.

(5) The following rules do not apply in relation to statutory arbitration—

rule 43 (extension of time limits)

rule 71(9) (power to declare provision of arbitration agreement void)

rule 80 (death of party)

(6) Despite rule 40, parties to a statutory arbitration may not agree to—

(a) consolidate the arbitration with another arbitration,

(b) hold concurrent hearings, or

unless the arbitrations or hearings are to be conducted under the same enactment.

Power to adapt enactments providing for statutory arbitration

17

Ministers may by order—

(a) modify any of the Scottish Arbitration Rules, or any other provisions of this Act, in so far as they apply to statutory arbitrations (or to particular statutory arbitrations),

(b) make such modifications of enactments which provide for disputes to be submitted to arbitration as they consider appropriate in consequence of, or in order to give full effect to, any of the Scottish Arbitration Rules or any other provisions of this Act.

Recognition and enforcement of New York Convention awards

New York Convention awards

18

(1) A “Convention award” is an award made in pursuance of a written arbitration agreement in the territory of a state (other than the United Kingdom) which is a party to the New York Convention.

(2) An award is to be treated for the purposes of this section as having been made at the seat of the arbitration.

(3) A declaration by Her Majesty by Order in Council that a state is a party to the Convention (or is a party in respect of any territory) is conclusive evidence of that fact.

Recognition and enforcement of New York Convention awards

19

(1) A Convention award is to be recognised as binding on the persons as between whom it was made (and may accordingly be relied on by those persons in any legal proceedings in Scotland).

(2) The court may order that a Convention award may be enforced as if it were an extract registered decree bearing a warrant for execution granted by the court.

Refusal of recognition or enforcement

20

(1) Recognition or enforcement of a Convention award may be refused only in accordance with this section.

(2) Recognition or enforcement of a Convention award may be refused if the person against whom it is invoked proves—

(a) that a party was under some incapacity under the law applicable to the party,

(b) that the arbitration agreement was invalid under the law which the parties agree should govern it (or, failing any indication of that law, under the law of the country where the award was made),

(i) was not given proper notice of the arbitral process or of the appointment of the tribunal, or

(ii) was otherwise unable to present the person's case,

(d) that the tribunal was constituted, or the arbitration was conducted, otherwise than in accordance with—

(i) the agreement of the parties, or

(ii) failing such agreement, the law of the country where the arbitration took place.

(3) Recognition or enforcement of a Convention award may also be refused if the person against whom it is invoked proves that the award—

(a) deals with a dispute not contemplated by or not falling within the submission to arbitration,

(b) contains decisions on matters beyond the scope of that submission,

(d) has been set aside or suspended by a competent authority.

(4) Recognition or enforcement of a Convention award may also be refused if—

(a) the award relates to a matter which is not capable of being settled by arbitration, or

Reading this document does not replace reading the official text published on legislation.gov.uk. Contains public sector information licensed under the Open Government Licence v3.0. We assume no responsibility for any inaccuracies arising from the conversion of the original CLML XML to this format.