Arbitration Law Monthly

On 18th November the Arbitration (Scotland) Bill 2009 was passed by the Scottish Parliament, the first time in the 800-year history of arbitration in Scotland that we have had a fully comprehensive arbitration statute. This was an event of immense significance, not only for Scotland. This article, written by Hew Dundas, who had a significant role in the passing of the legislation, will focus on some comparisons with the Arbitration Act 1996; a full, definitive article will appear in ‘Arbitration’, the Journal of the Chartered Institute of Arbitrators, in February 2010.

In National Trust v Fleming [2009] EWHC 1789 (Ch) an application was made to Henderson J for permission to appeal against an arbitration award for error of law under s69 of the Arbitration Act 1996. Permission was refused, but the judgment contains interesting comments on the application of the ’obviously wrong‘ threshold test for the grant of permission to appeal in cases not involving wider public interest issues.

The Court of Appeal, in Dallah Estate & Tourism Holding Co v Ministry of Religious Affairs, Government of Pakistan [2009] EWCA Civ 755, has upheld the first instance decision of Aikens J (discussed in the May 2009 issue of Arbitration Law Monthly) to refuse enforcement of an arbitration handed down in France. The learned judge ruled that the substantive agreement was governed by French law and, under that law, the defendant, the Government of Pakistan, was not a party to the arbitration clause. In upholding the decision, the Court of Appeal undertook an important analysis of the grounds upon which a foreign award can be refused enforcement under the New York Convention, and also of the exercise of the court’s discretion to grant enforcement even though a ground for refusal had been made out.