International arbitration law and rules in Scotland

Arbitration in Scotland can be traced back to the 12th century - however, despite an extensive history, Scotland did not have a clear and codified arbitration regime until the introduction of the Arbitration (Scotland) Act 2010.

1.1.1 Private arbitration in Scotland can be traced back to the 12th century. However, despite this extensive history, Scotland did not have a clear and codified arbitration regime until the introduction of the Arbitration (Scotland) Act 2010 (Scottish Arbitration Act).

1.1.2 Prior to the introduction of the Scottish Arbitration Act, the Scots law of arbitration was governed by old case law, piecemeal legislation and outdated rules, all of which led to the development of an uncertain and unclear regime. Reform was first proposed by way of a draft Arbitration Bill during the 1990s, but this was not progressed. In 1999, the Scottish Council for International Arbitration (SCIA) and the Chartered Institute of Arbitrators (Scottish Branch) (CIArb (SB)) produced the Scottish Arbitration Code (Code). The Code attempted to set out the general framework of arbitration and the rules under which arbitration in Scotland should be conducted. While the Code was widely welcomed, it was not mandatory and its adoption required the agreement of all parties to an arbitration.

1.1.3 A second draft of the proposed arbitration bill was produced in December 2002 by the Arbitration (Scotland) Bill Working Group, in association with the SCIA and CIArb (SB). The bill again sought to provide a comprehensive statutory framework for arbitration with an emphasis on the expediency of arbitral proceedings. However, the bill was not progressed.

1.1.4 Following a shift in political climate, in May 2007 the new Scottish Government adopted a manifesto goal of encouraging arbitration in Scotland. As a result, the Scottish Government prepared a further draft bill, drawing on the Model Law 1985, the Arbitration Act 1996 (English Arbitration Act) and the earlier draft bill of 2002. 

1.1.5 This time the draft bill was progressed. The Scottish Arbitration Act received royal assent on 5 January 2010 and came into full force and effect (except in relation to statutory arbitrations) as of 7 June 2010. 1 The Arbitration (Scotland) Act 2010 (Commencement No. 1 and Transitional Provisions) Order 2010

1.1.6 The Scottish Arbitration Act radically overhauled the Scots law of arbitration and provided the first complete statutory framework for arbitration in Scotland. That framework sought to adopt “best practice” from around the world. The drafters’ approach was to create a comprehensive, uniformly drafted Act. As a result, the decision was taken to repeal the Model Law 1985, which had been introduced into Scotland by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. Nevertheless, the principles that underpin the Model Law 1985 can still be found in the Scottish Arbitration Act. 2 Greens Annotated Acts – Arbitration (Scotland) Act 2010, p 2.

2.1.1 The Scottish Arbitration Act applies to all arbitrations that are “seated in Scotland”. An arbitration is defined as being “seated in Scotland” if:

• Scotland is designated as the juridical seat by the parties, by a third party with designated power to decide the juridical seat or by the arbitral tribunal (where parties fail to designate a third party); or
• in the absence of any such designation, the court determines Scotland to be the juridical seat. 3 Scottish Arbitration Act, s 3.

2.1.2 Once the relevant provision of the Scottish Arbitration Act comes into force, all statutory arbitrations (arbitrations pursuant to an enactment which provides for a dispute to be submitted to arbitration) will also be taken to be seated in Scotland. 4 Ibid, s 16(4).

2.1.3 If two Scottish parties arbitrate in Scotland but specifically choose a different jurisdiction as the juridical seat, the provisions of the Scottish Arbitration Act will generally not apply. Exceptions to this general rule include the following situations:

• the sisting of legal proceedings by a court (equivalent to a stay of proceedings in England) on the application by one of the parties where a valid arbitration agreement exists; 5 Ibid, s 10.  and
• the enforcement of awards. 6 Ibid, s 12.

2.2.1 The Scottish Arbitration Act consists of 37 primary sections and two schedules. The first of these schedules contains the Scottish Arbitration Rules (SAR). 7 Ibid, schedule 1.  The second schedule lists the extent to which previous legislation has been repealed. 8 Ibid, schedule 2.  In addition, explanatory notes (prepared by the Scottish Government) are annexed to the Scottish Arbitration Act.

2.2.2 The SAR provide an easy point of reference to the rules that govern arbitration seated in Scotland. They are intended to be user friendly and are categorised into mandatory and default rules. The status of each rule is denoted in Schedule 1 to the Scottish Arbitration Act by the letter “M” for mandatory rules and the letter “D” for default rules.
Mandatory rules

2.2.3 The mandatory rules apply to all arbitrations seated in Scotland, irrespective of which law the parties may choose to apply. These rules cannot be modified or disapplied by agreement between the parties or by any other means. 9 Ibid, s 8.  They are intended to establish minimum standards to ensure fairness and impartiality.

Default rules

2.2.4 The majority of the SAR are default rules which apply where the arbitration agreement is silent or the parties have not agreed to modify or disapply them (in whole or in part). 10 Ibid, s 9.  The default rules set out in detail elements of the procedural framework. They are intended to enable the maximum autonomy and flexibility for the parties. The default rules provide a fall back or “ready made” position if the parties are unable to agree on specific rules.

2.2.5 In addition to any express agreement by the parties to modify or disapply the default rules, the parties will be treated as having agreed to modify or disapply a default rule if the:

• rule is inconsistent with or disapplied by the arbitration agreement;
• rule is inconsistent with or disapplied by any arbitration rules or other document (for example, the UNCITRAL Rules (2010) or institutional rules) which the parties agree are to govern the arbitration;
• rule is inconsistent with or disapplied by anything done with the agreement of the parties; or
• parties choose a law other than Scots law as the applicable law in respect of the rule’s subject matter. 11 Ibid, s 9(4) (a)–(b).

2.3.1 The Scottish Arbitration Act is to be interpreted and applied in accordance with the three founding principles of fairness, autonomy of the parties and non-intervention by the courts. 12 Ibid, s 1.  The inspiration behind these principles was taken from the “general principles” of the English Arbitration Act.

Fairness

2.3.2 The object of arbitration is to resolve disputes fairly, impartially and without unnecessary delay or expense. 13 Ibid, s 1(a).  The wording “without delay or expense” comes from the English Arbitration Act and it has been commented that this will hopefully give confidence to arbitral tribunals to deal with matters in an expeditious manner without fear of criticism by the parties for doing so. 14 Greens Annotated Acts – Arbitration (Scotland) Act 2010, p 12.  This principle also underpins all of the SAR. The importance of this principle was emphasised by Lord Malcolm in the Outer House of the Court of Session in 2013, when he was critical of the ten-month period which had elapsed between a debate on jurisdiction and the issuing of the arbitrator’s decision. Arbitrators were reminded that “the founding principles of the 2010 Act include that arbitrations should be resolved without unnecessary delay.” 15 G1 Venues, Petitioners [2013] CSOH 202, [18]

Autonomy

2.3.3 Parties are free to agree how to resolve their disputes subject only to such safeguards as are thought to be necessary and in the public interest. 16 Scottish Arbitration Act, s 1(b).  Party autonomy is at the root of all modern arbitration law. The principle of party autonomy is reinforced by the proportion of rules within the SAR that are default rules rather than mandatory and so may be varied or excluded by the parties. Parties are encouraged to consider matters in advance and to exclude those rules that they do not wish to apply.

Limited court intervention

2.3.4 The court should not intervene in arbitration except as provided for by the Scottish Arbitration Act. 17 Ibid, s 1(c).  This principle, as expressed in Article 5 of the Model Law 1985, was included in the Scottish Arbitration Act to assist in dissuading the courts from intervening in arbitral matters. It remains to be seen to what extent the courts will intervene notwithstanding this “principle” and the apparent absence of a binding rule in this regard, although the court appears to have accepted the limitation in an early decision under the Scottish Arbitration Act and there has been no obvious intervention by the courts since then. 18 Arbitration Application No 3 of 2011 [2011] CSOH 164, para 3.  Case law in England in relation to the English Arbitration Act has interpreted the use of the words “should not intervene” (as used in the English Arbitration Act rather than “shall” as used by Article 5 of the Model Law 1985) to mean that court intervention is not entirely precluded. 19 Vale do Rio Doce Navegacos SA v Shanghai Bao Steel Ocean Shipping Co Ltd [2000] 2 All E.R. (Comm) 70.

2.4.1 The Scottish Arbitration Act amends the Prescription and Limitation (Scotland) Act 1973 (1973 Act) to allow the 1973 Act to apply to arbitrations in Scotland. 20 Scottish Arbitration Act, s 23.

3.1.1 An “arbitration agreement” is defined as an agreement to submit a present or future dispute to arbitration (including any agreement which provides for arbitration in accordance with provisions contained in a separate document). 21 Ibid, s 4.

3.1.2 Anyone who has legal capacity to bind himself to a contract can enter into an arbitration agreement in Scotland. The purpose of an arbitration agreement is to exclude the courts from the resolution of the dispute.

3.2.1 The Scottish Arbitration Act does not prescribe (unlike the English Arbitration Act or the Model Law 1985) that arbitration agreements must be in writing. Arguably, the Scottish Arbitration Act will therefore recognise agreements which are concluded orally.

3.2.2 The Scottish Arbitration Act makes clear that an arbitration agreement can relate to an ad hoc submission of an existing (present) dispute or an agreement between parties to submit all future disputes to arbitration (typically found in an arbitration clause within a wider contract).

3.2.3 However, the Requirements of Writing (Scotland) Act 1995 continues to apply to the situations to which it refers including rights relating to land, where agreements, including arbitration agreements, must be in writing to be valid in Scotland.

3.3.1 In principle, if a matter can be litigated before the civil courts, then it can also be arbitrated if the parties so agree. Some arbitration laws identify a list of subjects which cannot be arbitrated. The Scottish Arbitration Act has not done so, perhaps because at the heart of arbitrability in Scotland is the Scots common law of contract, the codification of which was not the intended purpose of the Scottish Arbitration Act. Therefore, the Scottish Arbitration Act does not, of itself, render any dispute capable of being arbitrated which would not have been otherwise capable of being arbitrated absent the Scottish Arbitration Act. 22 Ibid, s 30.

3.3.2 Generally speaking, the following matters may not be arbitrated under Scots law:

• criminal matters; 23 Soleimany v Soleimany [1999] Q.B. 785, 797.
• winding up of companies;
• creation of property rights (although the question of whether property rights have been infringed is in principle arbitrable);
• matters pertaining to public interest and status; and
• matters that require to be determined according to specific regulatory regimes.

3.4.1 The principle of separability, which has long applied in Scotland, is expressly set out in the Scottish Arbitration Act. Section 5(1) provides that an arbitration agreement which forms (or which was intended to form) part of a contract is to be treated separately from the remainder of that contract.

3.4.2 If the contract is terminated – for example, by a material breach or frustration – the arbitration clause is likely to subsist unless the tribunal (or the court upon review of the tribunal’s decision) takes the view that the factors resulting in the termination of the contract should also nullify the arbitration clause. 24 Scottish Arbitration Act, s 5(2).

3.4.3 Where a dispute arises regarding the validity of a contract, the dispute can still be arbitrated 25 Ibid, s 5(3).  in accordance with the arbitration clause or agreement notwithstanding the validity of the remainder of the contract, on the basis that the arbitration agreement can be severed from the remainder of the agreement which has its validity in dispute.

3.5.1 The Scottish Arbitration Act states that an award will be final and binding. 26 Ibid, s 11(1).  Although this was already the position prior to the Scottish Arbitration Act, it is hoped that the express statement will avoid any such issues arising. It should also assist in facilitating the enforcement of awards outside Scotland, given that the non-binding nature of an award is a ground for refusing enforcement under Art V(1)(e) of the New York Convention. 27 For the full text of the New York Convention, see CMS Guide to Arbitration, vol II, appendix 1.1.

3.5.2 In addition, any provisional award dealing with a particular issue will not be final and will be binding only to the extent specified in the award or until it is superseded by a subsequent award. 28 Scottish Arbitration Act, s 11(4).  This allows the tribunal a degree of flexibility, permitting it to make interim awards or even a series of provisional awards on the same issue without such awards being final and binding.

3.5.3 It is a fundamental principle of arbitration that it can only bind the parties to the arbitration agreement. The Scottish Arbitration Act appears to go a stage further by stipulating 29 Ibid, s 11(2).  that the award of a tribunal cannot bind any third party (acting in good faith), and that an award ordering the rectification or reduction of a deed or other document is not effective in so far as it would adversely affect the interest of any third party (acting in good faith). It is currently unclear what effect this provision will have in practice as there is no comparable provision under the English Arbitration Act.

4.1.1 Part 1 of the SAR addresses the constitution of the arbitral tribunal. The parties are provided with a degree of flexibility due to the mandatory and default rules contained in the SAR. Rule 2 (a default rule) provides that an arbitration agreement need not address the appointment of the tribunal – but, if it does so, parties may specify who is to form the tribunal, require the parties (or any other person) to appoint the tribunal, or provide for the tribunal to be appointed in any other way. 30 SAR, rule 2 (default rule).  

4.1.2 The parties can agree to choose one or more arbitrators and, if they wish, they may also specify the identities of the arbitrators within the arbitration agreement. However, the arbitrator must be an individual (as opposed to, for example, a corporate body). 31 Ibid, rule 3 (mandatory rule).  The arbitrator must be over the age of 16 and must not be an incapable adult under the Adults with Incapacity (Scotland) Act 2000. 32 Ibid, rule 4 (mandatory rule).

4.1.3 The default rules provide that if the parties fail to agree on the number of arbitrators the tribunal will consist of a sole arbitrator 33 Ibid, rule 5 (default rule).  who should be jointly appointed by the parties. 34 Ibid, rule 6 (mandatory rule).  The appointment of a sole arbitrator has tended to be the usual position in domestic arbitrations (usually for reasons of cost) but parties are free to agree on an alternative number of arbitrators, such as three, which is the norm in international arbitrations. There is no requirement to choose an odd number of arbitrators.

4.1.4 If the parties fail to appoint an arbitrator, the appointment may be referred to an arbitral appointments referee. 35 Ibid, rule 7(2) (mandatory rule). The arbitral appointments referee will appoint the arbitrator (subject to certain procedural requirements). If parties wish to challenge this appointment, an application can be made to the court to make the final decision on appointment.

4.1.5 A judge is only entitled to act as an arbitrator where the dispute appears to be of a commercial character and the Lord President of the Court of Session (the most senior civil judge in Scotland) has authorised the judge to so act. 36 Scottish Arbitration Act, s 25.

Challenging the appointment of arbitrators

4.2.1 A party may submit an objection to the tribunal regarding the appointment of an arbitrator. 37 SAR, rule 10 (default rule).  This should be distinguished from a right to remove. An objection can only be made in relation to:

• the impartiality or independence of the arbitrator;
• fair treatment of the parties; or
• the arbitrator not being qualified to the level agreed necessary by the parties.

4.2.2 This list is exhaustive and there are no other grounds for objection available. The default rule in the SAR provides that a party must make any objection to the tribunal within 14 days of becoming aware of the facts upon which the grounds for objection are based. This differs from the practice under the English Arbitration Act which provides for objections to be made to the court. This is a further example of the attempt to minimise the court’s involvement in arbitration matters.

Procedure

4.2.3 Any objection should be made directly to the tribunal. Notice must also be given by the party objecting to the other party to the arbitration. 38 Ibid, rule 10(2) (mandatory rule).  On receipt of a competent objection, the tribunal should decide to either confirm or revoke the appointment. 39 Ibid, rule 10(3) (default rule).  If they fail to do so within 14 days of a competent objection being made then the appointment of the challenged arbitrator is automatically revoked. 40 Ibid, rule 10(4) (default rule).  

4.2.4 The effect of the rule is that, where there is only one arbitrator, they are being asked to adjudicate on the challenge to their own appointment. However, there is an additional mandatory rule, which allows any party to apply to the Outer House of the Court of Session to remove the arbitrator 41 Ibid, rule 12 (mandatory rule).  if they are not happy with the decision of the tribunal, subject to satisfying the criteria detailed in the rule. The grounds for such an application are the three grounds for objecting to the tribunal (see paragraph 4.2.1) with two additions:

• that the arbitrator is not capable of being an arbitrator; 42 Ibid, rule 12(c) (mandatory rule).  or
• that a “substantial injustice” has been or will be caused if the arbitrator fails to conduct the arbitration in line with the arbitration agreement, the rules or any other agreement of the parties. 43 Ibid, rule 12(e) (mandatory rule).  

Use of the term “substantial injustice” would suggest that this will not extend to minor procedural breaches. This list is also exhaustive so any objection must be based on one of the five combined grounds.

Resignation of arbitrators and appointment of substitute arbitrators

4.2.5 An arbitrator may wish to decline an appointment, or be unable to act. In such circumstances, an arbitrator may resign if:

• the parties consent to the arbitrator’s resignation;
• the arbitrator has a contractual right to resign;
• a party has successfully challenged the arbitrator’s appointment;
• the parties choose to disapply Rule 34 (1) of the SAR, or
• a successful application has been made to the court. 44 Ibid, rule 15(1)(a)–(e) (mandatory rule).  

4.2.6 However, an arbitrator may also apply to resign, by way of petition to the Outer House of the Court of Session, irrespective of the parties’ position. 45 Ibid, rule 15(2) (mandatory rule).  

4.2.7 In the event of a successful resignation, it will be necessary to appoint a substitute arbitrator. The appointment of substitute arbitrators is an issue upon which the parties may agree. If they fail to do so, then such appointment will be dealt with under the rules discussed at section 4.1 above.

4.3.1 The Scottish Arbitration Act sets out the general duties that are incumbent upon the tribunal. These include that the tribunal must be impartial and independent, treat the parties fairly and conduct the arbitration without unnecessary delay or expense. 46 Ibid, rule 24(1)(a)–(c) (mandatory rule). These duties reflect the founding principles of the Scottish Arbitration Act and the laws of natural justice. They are mandatory duties and cannot be disapplied by the parties. The duty of treating the parties fairly is specifically extended to include giving each party a reasonable opportunity to put forward its case and address the other party’s case. 47 Ibid, rule 24(2) (mandatory rule).  

4.3.2 The parties are also free to agree (within the arbitration agreement or otherwise) any other duty or responsibility they may wish to place upon the arbitrator or tribunal including – for example, the default rules on confidentiality. 48 Ibid, rule 26 (default rule).

4.3.3 In contrast, the responsibilities or duties incumbent upon the parties are simply to conduct the arbitration without unnecessary delay or expense. 49 Ibid, rule 25 (mandatory rule).  

4.4.1 Part 7 of the SAR concerns arbitration fees and expenses. The parties’ obligation to pay an arbitrator’s fee is “several” rather than “joint and several” (the previous position under the common law). This means that the arbitrator can claim the fee from either one of the parties and the paying party has no right of relief against the other party until such time as an award is made in which the other party is found liable for all or part of the arbitrator’s fee. However, matters are made more complicated by a further rule (albeit a default rule) which stipulates that the parties are each liable for an equal share of the recoverable arbitral expenses until such time as an award is made, although it is stated that this should not affect the parties’ several liability. 50 Ibid, rule 62 (default rule).

4.4.2 The position is the same in relation to any expenses incurred by the arbitrator personally and any fees incurred by the tribunal (eg employing a clerk or experts). The arbitrator is entitled to a reasonable fee, which ideally should be stipulated by the arbitrator upon the acceptance of office.

4.4.3 If there is no agreement between the parties and the arbitrators on the amount of the arbitrators’ fees and expenses, the matter will be remitted to the Auditor of the Court of Session who will decide the amount to be paid based on a reasonable commercial rate of charge. 51 Ibid, rule 60(4) (mandatory rule).  Note that if the parties fail to agree, the Auditor of the Court of Session will also be responsible for determining the payment terms.

4.5.1 Part 9 of the SAR addresses arbitrator immunity. Those drafting the Scottish Arbitration Act decided to retain the common law position. Therefore, the SAR provides that neither the tribunal nor any arbitrator will be liable for anything done or omitted to be done in the performance of its functions. 52 Ibid, rule 73 (mandatory rule).  This extends to any breach of either its express or implied terms or any delictual wrong committed in the course of the tribunal’s functions.

4.5.2 Immunity extends to all of the tribunal’s functions, covering not only those functions under the Scottish Arbitration Act but also any supplementary contractual provisions agreed between the parties. However, there are two exceptions to the operation of immunity:

• if the act or omission is shown to have been in bad faith; or
• any liability arising from an arbitrator’s resignation.

4.5.3 The purpose of the immunity is to ensure that capable arbitrators are not discouraged from taking up a position due to a risk that they may be sued for damages following a possible error or mistake.

4.5.4 Immunity also extends to any expert, witness or legal representative that may have participated in the arbitration, to the extent that they would also have such immunity in civil proceedings before the Scottish Courts. 53 Ibid, rule 75 (mandatory rule).

5.1.1 An arbitral tribunal in Scotland has the power to rule on its own jurisdiction. This position is consistent with many modern arbitration systems. The tribunal can rule on questions relating to the validity of the arbitration agreement, whether the tribunal is properly constituted 54 Ibid, rule 19(a) and (b) (mandatory rule).  and whether a particular dispute falls within the terms of an arbitration agreement. 55 Ibid, rule 19(c) (mandatory rule).  As might be expected, the relevant rule is mandatory and cannot be amended or disapplied.

5.1.2 A party may object to the tribunal’s jurisdiction on the grounds that it does not have jurisdiction in relation to a particular matter or that it has exceeded its jurisdiction. Any objection must be made before, or as soon as reasonably practicable after, the matter to which it relates is raised in the arbitration. The exception to this timing requirement is where the tribunal considers the circumstances to justify a later objection. 56 Ibid, rule 20(2)(b) (mandatory rule). However, any objection must be made prior to the tribunal making its final award.

5.1.3 If the tribunal upholds the objection then it must end the arbitration (in so far as it relates to matters over which it does not have jurisdiction) and set aside any relevant provisional or partial award that has been made previously.

5.1.4 The tribunal may either rule on the objection separately from the subject matter of the dispute, or delay its ruling until it makes its award on the merits of the dispute. However, where the parties agree as to which course of action should be taken, the tribunal should proceed accordingly.

5.1.5 If a party seeks to appeal a decision of the tribunal on an objection to jurisdiction, it can rely upon a further mandatory rule, which allows parties the right to appeal to the Outer House of the Court of Session until 14 days after the decision.Pending such an appeal, the tribunal may continue with the arbitration thereby avoiding any vexatious objections that might otherwise be designed to stall the process. 57 Ibid, rule 21 (mandatory rule).

5.2.1 The tribunal has limited powers to order interim measures under a default rule in relation to protecting property that is the subject of the arbitration. 58 Ibid, rule 35 (default rule).  In particular, the tribunal can direct a party to allow an expert or a third party to inspect, photograph, preserve or take custody of any property, which that party either owns or possesses, which is the subject of the arbitration. The tribunal can also direct a party to take samples, carry out experiments or preserve any document or other evidence that any party controls. These are similar to the powers available to parties in civil proceedings before the Scottish courts.

5.2.2 The court has the same power otherwise to order interim measures in relation to arbitration as it has in relation to civil court proceedings. However, the court can only make such an order if requested to do so by a party to the arbitration, either with the consent of the tribunal if the arbitration has begun, or if the court is satisfied as to the urgency of the circumstances. 59 Ibid, rule 46 (default rule).

6.1.1 Arbitral proceedings begin when notice is given by one party to the other party (or parties) that they wish to submit the dispute to arbitration. 60 Ibid, rule 1 (default rule). The Scottish Arbitration Act contains no formal requirement as to the content or form of the notice, although the arbitration agreement may contain formal requirements that must be observed to ensure that such notice is valid.

6.2.1 The tribunal may determine the procedure to be followed in the arbitration. 61 Ibid, rule 28 (default rule).  However, this rule can be disapplied by agreement of the parties, reflecting the principle that the parties should be able to agree the form and method of resolution of their dispute.

6.2.2 The tribunal may also give such directions to the parties as it considers appropriate for the conduct of the arbitration and the parties are required to comply with such directions within such period as the tribunal may specify. 62  Ibid, rule 31 (default rule).

6.3.1 Subject to any agreement between the parties to the contrary, the tribunal may conduct the arbitration in any location that it sees fit. 63 Ibid, rule 29 (default rule).  This can be in Scotland or elsewhere.

6.3.2 There is no requirement under the SAR for the arbitration to be conducted in English. Instead, the tribunal may determine the language in which the arbitration will be conducted. 64 Ibid, rule 28(g) (default rule).  

6.4.1 Parties may agree to consolidate their arbitration with other arbitral proceedings (involving the same or different parties) or to hold concurrent hearings. However, the tribunal cannot do this on its own initiative. 65 Ibid, rule 40 (default rule).  There are special provisions regarding consolidation of statutory arbitral proceedings 66 Scottish Arbitration Act, s 16.  but these have not yet been brought into force.

6.5.1 The Scottish Arbitration Act provides flexibility for a tribunal to approach the resolution of a dispute in whatever way is most suited to the particular circumstances of the dispute. The tribunal can determine whether and to what extent the arbitration will proceed by way of hearings and written or oral argument. 67 Although note that in Arbitration Application No 3 of 2011 [2011] CSOH 164 the court granted leave to make a legal error appeal in respect of a tribunal’s decision as to the legal onus or burden of proof between the parties, but refused to grant leave for a legal error appeal relating to the arbitrator’s decision as to the relevance of certain written pleadings.  It may make orders regarding the presentation, disclosure and submission of documents or other evidence. 68 SAR, rule 28 (default rule).

6.6.1 A party may be represented in arbitration by a lawyer or by any other person. 69 Ibid, rule 33 (default rule).  No particular qualifications are required, although notice of the party’s representative must be given to the tribunal and to the other party before representation begins.

Failure to submit a claim or defence in good time

6.7.1 Where a party fails to submit a claim or defence in a timely manner, or there is an unnecessary delay without good reason, and the delay creates a substantial risk that the tribunal will not be able to resolve the issues fairly or the delay is likely to cause serious prejudice to the other party, the tribunal is required to end the arbitration in so far as it relates to the subject matter of the claim. The tribunal may also make any award it sees fit against the defaulting party, including an award of expenses. 70 Ibid, rule 37 (default rule).  

Failure to attend a hearing or produce evidence

6.7.2 Where a party fails (without good reason) to attend a hearing which it was requested to attend on reasonable notice or fails to produce any document or other evidence requested by the tribunal, the tribunal can proceed with the arbitration and make an award on the basis of the evidence (if any) before it. 71 Ibid, rule 38 (default rule).  

Failure to comply with a tribunal direction or arbitration agreement

6.7.3 A party will also be in default if it fails to comply with a tribunal direction or the arbitration agreement. As a consequence of this default, the tribunal can make an order requiring the party to comply with any directions or obligations arising from the tribunal or the arbitration agreement. 72 Ibid, rule 39 (default rule).  If a party continues to be in default by failing to comply with the tribunal’s order, the tribunal may:

• direct that the party is not entitled to rely on any allegation or material that is the subject matter of the order;
• draw adverse inferences from the party’s non-compliance;
• proceed with the arbitration and make its award; or
• make a provisional award (including an award on expenses) in consequence of the party’s non-compliance.

6.8.1 The tribunal will determine the admissibility, relevance, materiality and weight of any evidence. 73 Ibid, rule 28 (default rule). The tribunal will also determine the form in which evidence is to be given and whether or not it should be proactive in determining the facts and law relative to the dispute. It may determine what documents and evidence should be disclosed to or by either party and how this should be done. Witness evidence may be heard on oath or affirmation. 74 Ibid, rule 36 (default rule).

6.9.1 The tribunal may instruct an expert to provide an opinion on areas outside the arbitrators’ knowledge. 75 Ibid, rule 34 (default rule). The expert’s role is to advise the tribunal and not to determine the issues personally. The cost of this instruction will be met by the parties, who must consent to the instruction if significant expense is likely to be incurred. 76 Ibid, rule 32 (default rule).  If an appointment is made, the parties must be given a reasonable opportunity either to make representations about any written expert opinion or to hear any oral expert opinion and to question the expert.

6.9.2 Separately, parties are entitled to instruct their own experts to assist them in their case. It will be a question for the tribunal as to whether or not it is prepared to hear an expert’s evidence or allow their report to be relied upon and, if so, what weight is given to that evidence.

6.9.3 Experts in arbitral proceedings have immunity from suit to the extent that they would also have that immunity in civil proceedings in Scotland. 77 Ibid, rule 75 (mandatory rule).  A recent Supreme Court decision in an English case removed immunity from expert witnesses. 78 Jones v Kaney [2011] UKSC 13.  It still remains to be seen what approach is taken by the Scottish courts or the Scottish Parliament in response to that decision.

6.10.1 “Confidential information” is defined as being any information that is not in the public domain relating to the dispute, arbitration, award or to any civil proceedings relating to the arbitration in respect of which an order has been made under section 15 of the Scottish Arbitration Act (which provides a mechanism for protecting the identity of a party to legal proceedings connected with an arbitration). 79 SAR, rule 26(4) (default rule).  

6.10.2 Any disclosure of confidential information by the arbitrator(s) or parties is actionable as a breach of an obligation of confidence. 80 Ibid, rule 26(1) (default rule). Disclosure is not expressly prohibited but instead the Scottish Arbitration Act relies on the possible sanctions that might be obtained by way of an action for breach of confidence such as damages or interdict. It does not specify who has the right to bring an action for breach of confidence. The parties and the tribunal are, however, required to take reasonable steps to prevent unauthorised disclosure of confidential information by any third party involved in the arbitration 81 Ibid, rule 26(2) (default rule).  and the tribunal must inform the parties of these confidentiality obligations at the outset of the arbitration. 82 Ibid, rule 26(3) (default rule).  

6.10.3 Disclosure is permitted without sanction in certain circumstances where it is:

• authorised expressly or impliedly by the parties;
• required by the tribunal, or made to assist or enable the tribunal to conduct the arbitration;
• required by a rule of law, for the proper function of the disclosing party’s public functions or to enable any public body or office holder to perform their public functions properly;
• reasonably considered to be necessary to protect a party’s lawful interests;
• in the public interest;
• necessary in the interests of justice; or
• made in circumstances in which the discloser would have absolute privilege had the disclosed information been defamatory. 83 Ibid, rule 26(1)(a)–(g) (default rule).   

6.11.1 On application by the tribunal or any party, the court may order any person to attend a hearing to give evidence or disclose documents or other evidence to the tribunal. The court cannot, however, order a person to give evidence which that person would be entitled not to give in civil court proceedings. 84  Ibid, rule 45 (mandatory rule).

7.1.1 Where the parties agree that the arbitration is to be seated in Scotland but do not specify which law is to govern it, then Scots law will govern the arbitration agreement, unless the parties agree otherwise. 85 Scottish Arbitration Act, s 6.  

7.2.1 An award must be in writing and signed by all arbitrators or all of those assenting to the award. 86 SAR, rule 51 (default rule). It must state the seat of arbitration, when the award is made and when it takes effect, the tribunal’s reasoning and whether any previous provisional or partial award has been made. 87 Ibid, rule 51(2) (default rule).  An award is validly notified if it meets the criteria for formal notification or otherwise, as agreed between the parties. 88 Ibid, rule 83 (default rule).  

7.3.1 Parties can end the arbitration by notifying the tribunal that they have settled the dispute. 89 Ibid, rule 57(3) (default rule).  If the parties request it, the tribunal may make an award reflecting the terms of settlement. 90 Ibid, rule 57(4) (default rule).

Interest

7.4.1 The tribunal has detailed powers to award interest on all or part of an award, if it chooses to do so. 91 Ibid, rule 50 (mandatory rule).  The parties cannot remove by agreement the tribunal’s ability to award interest, although they are permitted to agree the manner in which interest is to be calculated if it is awarded. Interest may be awarded by the tribunal in respect of both the pre and post award periods. The tribunal may specify the interest rate and the payment period, and may make different determinations on interest for different parts of the award.

Expenses and costs

7.4.2 “Arbitration expenses” are defined as being the:

• arbitrator’s fees and expenses;
• expenses incurred by the tribunal in conducting the arbitration;
• parties’ legal and other expenses; and
• fees and expenses of any arbitral appointments referee and/or any third party to whom the parties gave powers in relation to the arbitration. 92 Ibid, rule 59 (default rule).

7.4.3 As mentioned at section 4.4 above, the parties are each separately liable for the arbitrator’s fees and expenses. 93 Ibid, rule 60 (mandatory rule).  The tribunal may make an award allocating liability between the parties for the recoverable expenses of the arbitration. 94 Ibid, rule 62 (default rule).

7.4.4 The parties are not permitted to agree between themselves the allocation of all or any arbitration costs before the dispute being arbitrated has arisen. 95 Ibid, rule 63 (mandatory rule).  

7.4.5 The tribunal is entitled to order either party to provide security for recoverable arbitral expenses as a condition of proceeding with that party’s claims. 96 Ibid, rule 64 (default rule). No conditions are laid down as to when such an order may be granted (although it may not be granted solely on the basis that the party in question is not a UK resident or company). It is likely that a similar test will be applied to that which must be met by a similar application in civil court proceedings.

7.5.1 Arbitral proceedings end when the last award in the arbitration is made and no claim is outstanding. 97 Ibid, rule 57(1) (default rule). The tribunal must, however, end the arbitration (or part of it) before then in two specific circumstances:

1.  if the tribunal upholds an objection to its jurisdiction; 98 Ibid, rule 20(3) (mandatory rule).  or
2. where a party delays without good reason in submitting or pursuing a claim and the tribunal is satisfied that the delay gives or is likely to give rise to unfairness in resolving those issues or has caused or may cause serious prejudice to the other party (subject to agreement between the parties to disapply this provision). 99 Ibid, rule 37(1) (default rule).     

7.6.1 Section 11 of the Scottish Arbitration Act provides that an award is to be final and binding on the parties or any persons claiming under or through them, although it cannot directly bind a third party. Parties can only challenge the award by any available arbitral process of appeal or review, or by application to the court in the specific circumstances set out in Part 8 of the SAR. Provisional awards are not final 100 Ibid, rule 53 (default rule). , and are binding only to the extent specified in the provisional award or until they are superseded by a subsequent award. 101 Scottish Arbitration Act, s 11(4).

7.7.1 Arbitrators have authority to deal with accidental errors or omissions, or any ambiguity in any final award they make. 102 SAR, rule 58 (default rule). This also applies to partial and provisional awards. The tribunal can make the correction on its own initiative or on the application of a party. Applications by a party must be intimated to the other party at the time the application is made, and must be made within 28 days of the award (unless that time limit is extended by application to court). 103  Ibid, rule 58(4) (default rule).

7.7.2 Before deciding whether to correct an award, the tribunal must give the other party or parties a reasonable opportunity to make representations about the proposed award. Corrections proposed by the tribunal must be made within 28 days of the award. Corrections proposed by a party must be made within 28 days of the application to correct the award being made.

7.7.3 If an award is corrected, it is treated as if it was made in the corrected form on the day it came into force. There is provision for the tribunal to make consequential corrections to other awards that are affected by any correction to a particular award.

8.1.1 It has long been considered to be a strength of arbitration in Scotland that an arbitration agreement effectively and conclusively replaces the jurisdiction of the court. As mentioned above, non-intervention by the courts is one of the three founding principles of the Scottish Arbitration Act.

8.1.2 Therefore, court interventions are limited to the specific circumstances set out in the Scottish Arbitration Act, some of which may be disapplied by agreement between the parties. These are dealt with in more detail elsewhere in this chapter, but in summary the court has jurisdiction to:

• enforce an arbitral tribunal’s award; 104 Scottish Arbitration Act, s 12.  
• deal with questions regarding the validity of the arbitration agreement, the constitution of the tribunal or the matters submitted to the arbitration; 105 Ibid, s 14; see also Ibid, schedule 1, part 8 – Challenging Awards.  
• determine a point of law on the application of any party; 106 SAR, rule 41 (default rule).  and
• vary any time limit relating to the arbitration which is imposed by the arbitration agreement or by any other agreement between the parties. 107 Ibid, rule 43 (default rule).  

8.2.1 Section 10 of the Scottish Arbitration Act provides for a mandatory sist (stay) of court proceedings if the following criteria are met:

• there is an arbitration agreement which provides that a dispute on the matter with which the court proceedings are concerned is to be resolved by arbitration; 108 See Morton v British Polar Engines Limited [2021] CSOH 118. The court will consider whether, as an objective matter of construction, the parties intended that the arbitration agreement would govern the dispute. See also Bogside Investments Ltd v Shute [2023] CSOH 25 at [10] to [14]. A dispute concerning an alleged fraud pre-dating an agreement containing an arbitration clause could be said to be within the scope of the arbitration agreement.
• the party seeking the sist is a party to the arbitration agreement, or is making its claim through or under a party to the arbitration agreement; 109 Bogside at [7] to [9]. The court held that an action should not be sisted for arbitration on the motion of one party, where the other party to the proceedings is not party to the arbitration agreement.
• notice of the application to sist the court proceedings has been given to the other parties in the court action;
• the person applying to sist the court proceedings has not taken any steps in the court proceedings to answer any substantive claim against him in that action or otherwise acted in a way which suggests a desire to have the dispute resolved in court rather than by way of arbitration; 110 Contrast Morton v British Polar Engines Limited [2021] CSOH 118 and Heart of Midlothian Football Club Plc v Scottish Professional Football League Ltd [2020] SLT 736. In Morton defences lodged made no reference to an arbitration plea, whereas in Heart of Midlothian defences lodged were subject to the “clear qualification” of an arbitration plea. Adopting a “purposive” approach, the court granted a sist in the latter case, but not the former. and
• there is nothing to indicate that the arbitration agreement is void, inoperative or incapable of being performed.  

8.2.2 It is not necessary that the arbitration in question has its seat in Scotland. The obligation on the Scottish court is to sist proceedings (subject to the conditions listed above) to give effect to any valid arbitration agreement.

8.3.1 Arbitration is largely a private matter in Scotland. In recognition of this, Section 15 of the Scottish Arbitration Act provides for the court to prohibit the disclosure of the identity of a party to the arbitration in any reporting of civil proceedings related to the arbitration, subject to application being made for an order prohibiting the disclosure. 111 In terms of RC 100.5(5) this application must be made prior to the hearing of the motion for further procedure.  The court must grant the application unless disclosure would be in the public interest or would be necessary for the interests of justice to be achieved, or is required to protect a party’s lawful interests or to enable the proper performance of public functions. The court will also refuse an application where the relevant information is already in the public domain. 112 See NLC v Stewart and Shields Ltd [2017] CSOH 76.  Consistent with Section 15, the court has confirmed that it will not identify on court lists or through access to court papers any parties to an application made to the court under the Scottish Arbitration Act until after the procedural stage – by which stage any application for anonymity must have been made – and will not normally publish decisions on the grant or refusal of leave to appeal on the judicial website unless they raise issues of law or practice. 113  See Arbitration Application No 3 of 2011 [2011] CSOH 164, para 18.

8.3.2 Unless the parties agree otherwise, the court also has the power to make various other orders in the same way that it can in civil proceedings. 114 SAR, rule 46 (default rule).  These include:

• appointing a person to safeguard the interests of any party lacking capacity;
• ordering the sale of any property in dispute in the arbitration;
• making an order securing any amount in dispute in the arbitration;
• making an order for the inspection, photographing, preservation, custody or detention of documents or any other property (including land), which are relevant to the arbitral proceedings (in terms of Section 1 of the Administration of Justice (Scotland) Act 1972);
• granting warrant for arrestment or inhibition (these are freezing orders over, respectively, moveable property and real estate, to secure the sum claimed in the arbitration); or
• granting interdict or interim interdict (“interdict” is the Scottish equivalent of an injunction in England).  

8.3.3 Applications in relation to the above matters can only be granted by the court on application by a party to the arbitration 115 For the procedure to be followed for such applications see RCS 100 of the Rules of the Court of Session.  and – if the arbitration has commenced – only with the consent of the tribunal or where the court is satisfied that there is urgency. Applications may also be brought before arbitration has commenced, if the court is satisfied that a dispute has arisen or might arise and that, if it does arise, the dispute is one to which an arbitration agreement applies. 

9.1.1 Courts in Scotland have limited jurisdiction to review arbitral awards. 116 Scottish Arbitration Act, s.13 The tribunal’s award is not subject to review or appeal in any legal proceedings except as set out in Part 8 of the SAR (see below). Part 8 does not apply where parties have asked the tribunal to make an award reflecting the terms of a settlement between them. 117 SAR, rule 57(4) (default rule).   

9.2.1 Under Part 8 of the SAR, only three types of appeal to the court are permissible:

1. jurisdictional appeal: a complaint that the tribunal did not have jurisdiction to make the award; 118 Ibid, rule 67 (mandatory rule).
2. serious irregularity appeal: a complaint that the tribunal failed to conduct the arbitration in accordance with the arbitration agreement, the Scottish Arbitration Act or the SAR or any other agreement between the parties concerning the conduct of the arbitration; 119 Ibid, rule 68 (mandatory rule). See Arbitration Application 1 of 2013 [2014] CSOH 83, in which it was argued (unsuccessfully) that the arbitrator had stepped beyond his role and failed to give reasons for his decision.  and
3. legal error appeal: a complaint that the tribunal erred on a point of Scots law. 120 Ibid, rule 69 (default rule). Legal error appeals are only available in those arbitrations where the substantive law of the parties’ contract is Scots law.  

9.2.2 Jurisdictional appeals and serious irregularity appeals can generally be made to the Outer House of the Court of Session 'as of right' (subject to the requirements of Rule 71, see paragraphs 9.2.4-9.2.5 below). 

9.2.3 However, the Outer House will only consider a legal error appeal in limited circumstances: either with the agreement of the parties, 121 See Arbitration Application No.2 of 2011 [2011] CSOH 186.  or where the leave of the court is first granted. 122 SAR, rule 70(2) (mandatory rule).  The Outer House will only grant leave where the following criteria are met: 123 Ibid, rule 70(3) (mandatory rule).

• the point will substantially affect a party's rights;
• the tribunal was asked to decide that point; 124 See Arbitration Application No.2 of 2016 [2017] CSOH 23. A point of law must have been “fairly and squarely placed before the arbitrator” (citing Safeway Stores Plc v Legal & General Insurance Society [2005] 1 P & CR 9). and
• on the basis of the findings of fact in the award, the tribunal's decision on the point was obviously wrong; 125 See Arbitration Appeal No 1 of 2021 [2021] CSOH 41 and Arbitration Appeal No.1 of 2019 [2019] CSOH 60. The “obviously wrong” test is a high hurdle to surmount – the arbitrator’s decision must be more than “on balance wrong”, instead there requires to be “a major intellectual aberration” (Braes of Doune Wind Farm (Scotland) Limited v Alfred McAlpine Business Services Limited [2008] 1 Lloyd’s Rep 608)) or something “so obviously wrong as to preclude even the possibility that the arbitrator was right” (Antaios Compania Naviera A v Salen Rederierna AB [1985] 1 AC 191). or
• the point is of general importance, 126 See Arbitration Application No.3 of 2011 [2011] CSOH 164, where leave was granted in relation to a point arising under a standard form of building contract. Lord Glennie found that “[al]though building contracts contain different provisions for interim payments, and much will depend on the particular terms in each case, the general approach is likely to apply across a range of such provisions.” Contrast with Arbitration Application No. 2 of 2016 [2017] CSOH 23, which arose in relation to an NEC3 Option C contract but which departed from the standard form in several significant respects, making it bespoke. Leave was refused as no point of general importance arose. and on the basis of the findings of fact in the award, the tribunal's decision on the point is open to serious doubt.  

9.2.4 Supplementary provisions regarding the process of making an appeal are contained in Rule 71, which is mandatory. Appeals against provisional awards are not permitted, although they are permitted against partial awards. If an appeal is brought against a partial award, the tribunal may continue with the arbitration in respect of the remaining matters whilst the appeal is ongoing. Notice of an appeal must be given to the other party to the arbitration and to the tribunal. The court may order the tribunal to state its reasons for the award to enable the court to deal with the appeal properly and may make any order it sees fit in relation to any additional expenses arising from that order.

9.2.5 An appeal must be brought within 28 days of the date of the award or the date of determination of a correction process or a review or appeal process by the tribunal, whichever is later. 127 Ibid, rule 71(4) (mandatory rule). As a legal error appeal can only be brought with the agreement of the parties or with leave of the court, for the purpose of complying with this time limit a legal error appeal is treated as having been made when leave is sought to make the appeal.

9.2.6 In each case, whilst any appeal is made initially to the Outer House of the Court of Session, 128 Ibid, rules 67(1) and 68(1) (mandatory rules); see also rule 69(1) (default rule). The procedure for making such an appeal is governed by RCS 100. See also Arbitration Application No 3 of 2011 [2011] CSOH 164, which sets out in detail how the procedure is intended to be applied in practice. the decision of the Outer House may be appealed to the Inner House of the Court of Session, but only if the leave of the Outer House is first granted. Leave may only be granted by the Outer House where it considers that the proposed appeal raises an important point of principle or practice or where there is another compelling reason for the Inner House to consider the appeal. 

9.2.7 An application for leave must be made within 28 days of the Outer House decision, and if leave is granted, the appeal must be brought within seven days of leave being granted. 129 Ibid, rule 71(5) (mandatory rule).  The Outer House decision on whether to grant leave, and the Inner House decision on such an appeal, are final. Appeal in each case is only competent where the appellant has exhausted any available arbitral process of appeal or review. This would include, where appropriate, the provisions in Rule 19 allowing an arbitrator to rule on his or her own jurisdiction, and Rule 58, which provides for the correction of an award.

9.2.8 The court may order an appellant, or a party applying for leave to appeal, to provide security for costs for the expenses of the appeal or the application and may dismiss the appeal or application if such security is ordered but not provided. It may not, however, make an order for security only on the grounds that the appellant is based outside the UK. 130 Ibid, rule 71(10) and (11) (mandatory rule).

9.2.9 The court may also order that any sum which is due under an award being appealed (or any associated provisional award) is paid into court or otherwise secured pending a decision on the appeal. As with security for costs, if the order is not complied with then the court may dismiss the appeal. 131 Ibid, rule 71(12) (mandatory rule).

9.3.1 Awards may be set aside on the basis of appeals brought under any of the three categories mentioned above if the court decides that reconsideration of the award would be inappropriate. 132 Ibid, rules 67(2), 68(3) and 70(8) (all mandatory rules). If the court orders that an award or part of an award should be set aside, it may also order that any provision in the arbitration agreement which prevents the bringing of legal proceedings in relation to the subject-matter of the award is void. 133 Ibid, rule 71(9) (mandatory rule).

9.3.2 If, in respect of a serious irregularity appeal or a legal error appeal, the court orders the tribunal to reconsider part of or the entire award, then the tribunal must make a new award (or confirm its original award) within three months of the Outer House or Inner House decision unless the court orders otherwise. 134 Ibid, rule 72 (mandatory rule).

9.3.3 It is permissible to appeal against a new award and the rules apply equally in relation to such appeals as they do to appeals against the original award. 135 Ibid, rule 72(2) (mandatory rule).

10.1.1 Any party to an arbitration seated in Scotland may apply to the court for an order to enforce an arbitral tribunal’s award. The court has authority to make an order that the award may be enforced as if it were a final court award. 136 Scottish Arbitration Act, s 12(1).

10.1.2 The court may not make such an order if:

• the award is currently under appeal, either to the court under Part 8 of the SAR, or under an arbitral process of appeal or review, or is subject to a process of correction under Rule 58 of the SAR; 137 Ibid, s 12(2). or
• the court is satisfied that the tribunal did not have jurisdiction. 138 Ibid, s 12(3).

The onus of proof is on a party disputing a request for an enforcement order to show that the tribunal did not have jurisdiction, rather than on the applicant to prove that it did. The question of whether or not the tribunal had jurisdiction cannot be raised by a party if it has already lost the right to raise that objection under Rule 76 of the SAR. This may happen if the applicant has participated in the arbitration and not disputed the jurisdiction of the tribunal as soon as reasonably practicable. If the court is satisfied that the tribunal only had jurisdiction to make part of the award, the court may restrict the order accordingly.

10.1.3 Where the court makes an order to enforce a tribunal’s award, the award will be registered in the court records in the same way as a court decree (judgment) is registered. 139 Ibid, s 12(5). Steps can then be taken to enforce the award in the same way as a court decree would be enforced.

10.1.4 As an alternative, where the arbitration agreement so provides, awards may also be registered for execution in the Books of Council and Session or Sheriff Court books, thus allowing such awards to be enforced directly without further application to the court. This is only possible if the arbitration agreement contains consent to registration for execution, and if the agreement is itself registered.

10.2.1 Section 12(6) of the Scottish Arbitration Act provides that, where the arbitration concerned was seated outside Scotland, awards may be enforced in the same way as domestic awards, subject to the same requirements as set out above.

10.2.2 The Scottish Arbitration Act contains specific provisions in relation to awards made in pursuance of a written arbitration agreement in the territory of a party to the New York Convention. 140 Ibid, s 18–22. These are recognised as binding on the parties between whom they were made and can therefore be relied on by those parties in any legal proceedings in Scotland. The court may order the enforcement of such an award as if it were an award of the Scottish court. In order to enforce a New York Convention award, the duly authenticated original award (or a duly certified copy of it), and the original arbitration agreement (or a duly certified copy of it) must be produced. Where these are not in English, a certified translation must be provided. 141 Ibid, s 21.

10.2.3 The court may only refuse to make an order in respect of a New York Convention award in the following circumstances:

• a party to it was under some incapacity under the law applicable to the party;
• the arbitration agreement was invalid under the law the parties agreed should govern it (or, failing agreement, the law of the country where the award was made);
• the applicant was not given proper notice of the arbitral process or of the appointment of the tribunal or was otherwise unable to present his or her case;
• the tribunal was constituted or the arbitration was conducted otherwise than in accordance with the parties’ agreement or the law of the country where the arbitration took place;
• the party against whom the award is invoked proves that the award deals with a dispute (i) not contemplated by or within the submission to the arbitration; (ii) which goes beyond the scope of the submission to the arbitration; (iii) is not yet binding; or (iv) has been set aside or suspended by a competent authority; or
• the award is contrary to public policy. 142 Ibid, s 20(2).

10.2.4 If the award only partly exceeds the matters submitted to arbitration, then it can be enforced in respect of the competent part, provided that the relevant decisions can be separated from those matters that should not have been included. 143 Ibid, s 20(5). There is also provision for the application to enforce to be sisted (stayed) or for security to be provided if an application to set aside or suspend the decision is made while the enforcement action is current.

11.1.1 The Scottish Arbitration Act provides Scotland with a firm foundation upon which it may continue to develop the law of arbitration. It radically overhauled the Scots law of arbitration and, since coming into full force and effect on 7 June 2010, it has provided the first complete statutory framework for arbitration in Scotland. As that framework sought from the outset to adopt “best practice” from around the globe, it is hoped and expected that arbitration will continue to grow again in popularity in Scotland as a means of dispute resolution. The ambition of the Scottish government, and organisations such as the CIArb (SB) and the Scottish Arbitration Centre, is that Scotland will become a jurisdiction of choice in relation to not only domestic but also international arbitration in the future.