The UNCITRAL Model Law and Judicial Control of Arbitration in Scotland

Abstract

The recent articles in Arbitration International by I. N. Duncan Wallace and Pierre Mayer on the theme of seeking the middle ground of court control1 have prompted this writer into proffering, as a not unreasonable solution, the position recently adopted in Scotland. That solution, in so far as it rejects review of the merits of an award is not a new solution but a (new) statement of the position as it had obtained for centuries until 1972. Recourse to the courts to carry out control functions has also existed for a very long time, but the adoption of a streamlined procedure for cases not falling under the Model Law while leaving parties to international commercial arbitration with recourse to the courts effectively confined to proceedings under the Model Law and in particular Articles 34 and 36 has the merit, it is thought, of an elegant consistency. In Scotland a large number of arbitrations takes place each year under a variety of statutory provisions, which make arbitration compulsory. The commonest such arbitrations are those under the agricultural holdings and marketing legislation. These almost invariably provide for recourse to the courts by way of stated case on questions of law arising in the course of the arbitration. Far more arbitrations take place each year at common law, arising from agreement between the parties to select arbitration as their preferred method for resolution of disputes. These now (since the introduction of the UNCITRAL Model Law into Scotland by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 Section 66 and Schedule 7) fall into three classes for present purposes: (1) International commercial arbitrations within the scope of the Model Law (which includes ‘domestic’ arbitrations where the parties have elected to apply the Model Law as provided for in the statute); (2) all other arbitrations, being domestic or non-commercial not falling into class (3), being arbitrations to which Section 3 of the Administration of Justice (Scotland) Act 1972 ‘the 1972 Act’ applies. That section requires an arbiter or oversman to state a case for the opinion of the Court of Session on any question of law arising in the arbitration; (3) This class consists of all the arbitrations which would otherwise fall under (2) but where the parties have expressly excluded, as they are entitled to do under Section 3(1) of the 1972 Act, the power to state a case for the opinion of the Court of Session.