Scotland - World Arbitration Reporter, Second Edition

Prior to the passing of the Arbitration (Scotland) Act 2010, the law of arbitration in Scotland was fragmented and to be found in various sources, both at statute and common law. The statutory framework had been originally laid out in the nineteenth century and was built upon and developed by the judiciary in the law, establishing principles of Scottish arbitral law. Scots law had long recognised arbitration as a dispute resolution mechanism, recognising the decision maker as the “arbiter”. General principles evolved e.g. that while arbiters had to decide the questions before them according to the law, the Award could not be impugned on the ground of error of law. The courts also established the fundamental principle that arbiters had to treat the parties “fairly and equally”, albeit recognising that arbiters possessed considerable latitude in the format and conduct of the arbitration itself.

Up until the 2010 Act, the role of statute law was relatively minor. The Arbitration (Scotland) Act 1894 contained only six sections. The Administration of Justice (Scotland) Act 1972 s.3 imported from England the much-maligned “case stated” procedure, which created dissatisfaction with arbitration in Scotland and was, in large measure, a driver for reform of Scottish arbitration law leading to the 2010 Act. The Arbitration Act 1975 gave effect to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) and the Arbitration Act 1950 Pt II gave effect to the 1927 Geneva Convention for the Execution of Foreign Arbitral Awards. The Arbitration (International Investment Disputes) Act 1966, gives effect to the 1965 Washington Convention on the Settlement of Investment Disputes between States and the Nationals of other States.