A giant leap for [Scots] mankind

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.

Background

Scots law is wholly different from that in England & Wales (and that in Northern Ireland) although many aspects of the law are near-identical eg corporate law, adjudication law and all laws derived from Brussels. Arbitration law is probably as far-apart different as any as will become apparent; in particular, the 1996 Act was an evolution of successive Arbitration Acts dating back at least to 1889 whereas Scotland has never had a ‘proper’ arbitration Act before, being one of the few countries in the world lacking a modern domestic arbitration statute. Scots arbitration law is a mixture of out-of-date, old, very old and truly ancient case law (dating back at least to 1207) and piecemeal statute (back to 1598 and 1695) and is riddled with anomalies and uncertainties. An attempt at a Bill was made in 1996 but attracted no political support and a privately-drafted Bill was submitted to the Scottish Government in 2002, substantially consistent with the Model Law and drawing on the best features of the 1996 Act, but the Government all but ignored it.