2. Alternatives to Court: Arbitration and Alternative Dispute Resolution in Scotland Brandon Malone FCIArb Chairman Scottish Arbitration Centre

3. Arbitration and ADR Arbitration Mediation Med Arb / Arb Med
Construction Adjudication
Expert Determination
Dispute Resolution Boards
Online Dispute Resolution

4. Arbitration Arbitration (Scotland) Act 2010
Similar to Arbitration Act 1996 (England)
Key features
Open
Flexible
Confidential
Restricted rights of challenge

5. Arbitration (Scotland) Act 2010
Structure
The ‘Scottish Arbitration Rules’ are contained in the schedule to the Act
Some rules are mandatory
Some rules are default and can be amended by the parties

6. Scottish Arbitration Open:
Any natural person can be appointed as an arbitrator
No formal qualification required to be an arbitrator
No restriction on nationality for arbitrator or counsel
No requirement to be represented by a lawyer qualified in Scotland or elsewhere

7. Scottish Arbitration Flexible:
Procedure is a matter for the agreement of the parties, which failing the arbitral tribunal
Procedure can be as formal or informal as the subject matter of the dispute requires

8. Scottish Arbitration Confidential
Confidentiality is written into the rules as a default provision
A breach of confidentiality is actionable
If a breach of confidentiality causes loss, the loss can be recovered as damages
An apprehended breach can be prevented through interdict

9. Confidentiality in arbitration
Where there is an incidental referral to the court:
Proceedings are anonymised
The case is referred to as ‘Arbitration Application Number [ ] of [year]’
Hearings are held in private
Published decisions maintain anonymity
Parties may apply for a further redaction of sensitive information or to prevent publication of the case

10. Scottish Arbitration Restricted rights of challenge
Excess of jurisdiction
Serious irregularity
Legal error
only if the contract is subject to Scots law
parties may exclude legal error appeals by agreement

11. Arbitration: legal culture
Generally a common law approach
Adversarial
Cross examination may be permitted
Some civil law influence
Use of written witness statements and submissions common
No general duty of disclosure and discovery is limited

12. Use of arbitration Construction and engineering contracts
Commercial leases
Partnership agreements
Separation agreements
Government contracts
Energy contracts

13. Scottish Arbitration The institutional picture
Scottish Arbitration Centre
International Centre for Energy Arbitration
Arbitral Appointment Referees
Family Law Arbitration Group Scotland (FLAGS)

14. Scottish Arbitration Centre
Established to promote Scottish arbitration and Scotland as seat and venue for arbitration
Founding Members
Chartered Institute of Arbitrators
Faculty of Advocates
Law Society of Scotland
RICS Scotland
Scottish Government

15. Scottish Arbitration Centre
Does not currently administer arbitrations
Can make ad hoc appointments through its appointments subcommittee
Works with other arbitral institutions such as ICC, ICDR and LCIA

16. Scottish Arbitration Centre
Independent Appointments Committee
Domestic and international subcommittees
Committee members from around the world
Including one Brazilian! - Eliana Baraldi, Head of Arbitration and Mediation at De Vivo, Whitaker e Castro Advogados, São Paulo

18. ICEA The International Centre for Energy Arbitration launched in 2013
Joint project between the Scottish Arbitration Centre and the Centre for Energy, Petroleum and Mineral Law and Policy (CEPMLP) at the University of Dundee

21. ICCA Edinburgh 2020
International Council for Commercial Arbitration Congress 2020
To be held in Edinburgh May 2020
Over a 1,000 senior international arbitration professionals

22. CIArb London Centenary Principles
Best practice for arbitral seats

23. Law
A clear effective, modern International Arbitration law which shall
recognise and respect the parties’ choice of arbitration as the method for
settlement of their disputes by:
(a) providing the necessary framework for facilitating fair and just resolution of disputes through the arbitration process;
(b) limiting court intervention in disputes that parties have agreed to resolve by arbitration.
(c) striking an appropriate balance between confidentiality and appropriate transparency, including the growing practice of greater transparency in investor state arbitration.

24. Judiciary
An independent Judiciary, competent, efficient, with expertise in International Commercial Arbitration and respectful of the parties’ choice of arbitration as their method for settlement of their disputes.

25. Legal Expertise
An independent competent legal profession with expertise in International Arbitration and International Dispute Resolution providing significant choice for parties who seek representation in the Courts of the Seat or in the International Arbitration proceedings conducted at the Seat.

26. Education
An implemented commitment to the education of counsel, arbitrators, the judiciary, experts, users and students of the character and autonomy of International Arbitration and to the further development of learning in the field of arbitration.

27. Right of Representation
A clear right for parties to be represented at arbitration by party representatives (including but not limited to legal counsel) of their choice whether from inside or outside the Seat.

28. Accessibility and Safety
Easy accessibility to the Seat, free from unreasonable constraints on entry, work and exit for parties, witnesses, and counsel in International Arbitration, and adequate safety and protection of the participants, their documentation and information.

29. Facilities
Functional facilities for the provision of services to International Arbitration proceedings including transcription services, hearing rooms, document handling and management services, and translation services.

30. Ethics
Professional and other norms which embrace a diversity of legal and cultural traditions, and the developing norms of international ethical principles governing the behaviour of arbitrators and counsel.

31. Enforceability
Adherence to international treaties and agreements governing and impacting the ready recognition and enforcement of foreign arbitration agreements, orders and awards made at the Seat in other countries.

32. Immunity
A clear right to arbitrator immunity from civil liability for anything done or omitted to be done by the arbitrator in good faith in his or her capacity as an arbitrator

33. Mediation Consensual dispute resolution process
Slow take up in Scotland
Mainly used in family disputes
Some consumer and commercial dispute resolution
European Union ADR Directive may lead to increased use of mediation in consumer disputes

34. Mediation No equivalent of New York Convention for ADR
Problems with international enforcement of mediation agreements

35. Integrating mediation
International Centre for Energy Arbitration Report (
Strong support for compulsory mediation as part of the arbitration process
Med-Arb and Arb-Med

36. Integrating mediation
SIAC Rules
Arbitration-Mediation-Arbitration
Operates as Med-Arb but the intention is that a mediated award can be enforced under the New York Convention
A New York Convention for mediation awards?

37. Construction Adjudication
Rapid 28 day process
Temporarily binding award
Can be superseded by a court or arbitral award
Very difficult to challenge
jurisdiction and natural justice grounds only
No recovery of legal expenses for successful party

38. Construction Adjudication
Adjudication has been very popular in the construction industry
Used more widely than arbitration and litigation
Some dissatisfaction because of
rough justice
inability to recover expense
challenges and temporarily binding nature

39. Expert Determination Best used for issues of expert opinion such as
quality
measurement
conformity to contract
Very little prospect of challenging an award
Relatively fast and inexpensive

40. Dispute Boards Used on large scale long term projects
Dispute Resolution Boards
Issues recommendations which parties may or may not accept
Dispute Adjudication Boards
Issues awards which bind the parties until the end of the contract
Award may become permanent if not challenged

41. Uses of technology Efficiencies achieved through document management
e-discovery
video conferencing
Use of technology to reach settlement - blind bidding

42. Online Blind-bidding Standalone blind-bidding
Parallel online blind-bidding
integrated into a dispute process
available at key stages

43. Brandon J Malone FRICS FCIArb WS Chairman
Scottish Arbitration Centre, Edinburgh
Tel: