Book reviews

Arbitration

2nd edition

Fraser Davidson

PUBLISHER: W GREEN/SCOTTISH UNIVERSITIES LAW INSTITUTE

ISBN: 9780414017764

PRICE: £155

This book, part of the highly regarded Scottish Universities Law Institute (SULI) series, provides a comprehensive account of the Scots law of arbitration, materially updated and restructured since the first edition (published in 2000), and taking account of the Arbitration (Scotland) Act 2010.

The text, running to a substantial 905 pages, covers all aspects of the law of arbitration – mainly domestic, but also wider authorities on international arbitration.

It is clear from the table of cases alone (which runs to 63 pages) that a significant amount of detailed research has been undertaken to provide a comprehensive guide to the pre-2010 Act case law, especially when comparative analysis is made, as appropriate, with the English 1996 Act and associated case law; and updated with views on the new regime under the 2010 Act.

The law is stated as being at 1 March 2012, and because the work recognises that some arbitrations conducted in Scotland may still fall to be determined under the pre-2010 regime and others under the 2010 Act, each chapter is helpfully split accordingly. This will be helpful to those practitioners who are perhaps, for the first time, considering this text, due to the renewed interest in arbitration as a dispute resolution method.

The historical context is also found in the first four chapters, covering "Historical and comparative introduction", "What is arbitration and why arbitrate?", "General provisions", and "Arbitrability and the ability to arbitrate". As well as detailed consideration of important issues such as the agreement to arbitrate, appointing the tribunal, separability and jurisdiction, there are also updated chapters on "The conduct of the arbitration" (extensively rewritten to take account of the Scottish Arbitration Rules, which are part of the 2010 Act), "Privacy, confidentiality and anonymity", "Awards", and "Arbitration expenses". There is also coverage of the most up-to-date version of the UNCITRAL Model Law on International Commercial Arbitration, together with some references to some of the main international institutional rules.

As a practitioner, I can already vouch myself that I have found it very useful to have the comparison between the older case law under the previous (in my view, over-complicated) regime and the modern, arbitration-friendly (and, hopefully, internationally attractive) regime promoted by the 2010 Act. I have already used the updated text in the heat of battle on two occasions, and have found it to be a very useful jumping-off point for further more detailed analysis of the relevant case law.

Whilst appendices are necessarily kept down to a minimum, a full copy of the 2010 Act (including the Scottish Arbitration Rules, found in sched 1) and the relevant Rules of the Court of Session, are helpfully found at appendices 1 and 2 respectively.

All in all, an excellent text and any serious arbitration practitioner practising in Scotland should have this on their bookshelf, as it is the most comprehensive text covering the Scots law of arbitration from a substantive standpoint.

Pleading in Arbitration: A Practitioner's Guide

Steven P Walker and Iain K Clark

PUBLISHER: W GREEN

ISBN: 9780414018402

PRICE: £94.86

In many ways this book is ahead of its time – hopefully at least! It covers in considerable depth the procedure used in arbitral tribunals under the main institutions throughout the world. In addition it provides guidance in respect of an ad hoc arbitration, i.e. one which is not linked to an arbitral institution’s particular rules.

While the number and existence of international arbitrations is always subject to conjecture, and stories about arbitration in Scotland tend to be apocryphal, to the best knowledge of this reviewer, there have not been many international arbitrations with Scottish parties and with Scottish representation, at least to date. That will hopefully change as Scotland starts to take its place on the international arbitration stage.

How? In two ways. First, those engaged in arbitration internationally become aware of the benefits of arbitration in Scotland and therefore aware of the practicality and efficacy of the Arbitration Scotland Act 2010. All of that could lead to more arbitrations “seated” here. Secondly, advocates and solicitors advising clients in Scotland become increasingly aware of the advantages of arbitration as a dispute resolution mechanism, recommend it more often, and so will be in a position to assist their Scottish clients in international arbitrations. In respect of the latter point, this book is a helpful guide.

International arbitrations often see the two tectonic plates of the legal world rub up against each other, when the two sides are from different jurisdictions and are used to doing things in different ways. Thus there is often the juxtaposition of the common law and civil law approaches as applied in procedure, citation of witnesses (to assist the parties or the tribunal), their witness statements (as evidence-in-chief or as a simple statement), experts (the “hired gun” or the court/tribunal appointed expert), cross-examination (limited or not), as well as informing the overall approach of the tribunal either as an inquirer into fact or as the simple adjudicator of the parties’ respective cases, or, as frequently, a combination of both.

The point has been often made, but it is a valid one, that Scottish lawyers, with their training, are in a good position to work with both systems. Indeed the authors note that “Scotland with its Roman law origins and doctrinal foundation together with common law influences puts it in a good position to bridge the civil/common law divide in international arbitration.” I respectfully concur.

As to the content, in the preface the authors state that they intended to produce a practical step-by-step guide outlining the various procedural stages of an arbitration process. That they do, as they helpfully take the practitioner through the steps of "The Request" (chapter 2); "The Response" (chapter 3); on to "The Formation of the Arbitral Tribunal" (chapter 4) and then "The Procedural Hearing" (chapter 5). These are the preliminary steps in any arbitration to the point of the tribunal determining the further procedure. Towards the latter part of the book, "The Hearing" itself is examined (chapter 12), wrapping up with the raison d’être of the whole process, "The Final Award" (chapter 13).

Sandwiched between these two chunks of procedure are the more practical elements of pleadings, exhibits, witness statements, the (often contentious) topic of document disclosure, and the very important issues that arise in seeking interim relief.

Throughout, there are nicely worked examples of the steps of process, and for those who have not seen pleadings in arbitrations, these are competent styles from which to draw.

What is also helpful is that under these chapters of procedure, the sections of the relevant institutional rules (ICC, LCIA, ICDR, UNCITRAL) are also extended and put in the one place, so that a practitioner dealing with a step of procedure in e.g. an institutional arbitration would be able to find the relevant rules for that topic quickly. It is also of assistance that although the law is stated to be as applicable at 1 January 2012 (with a plug that there is no replacement for seeking appropriate legal advice from a qualified adviser), the authors have managed to squeeze in the most up-to-date edition of the ICC Rules.

Where the authors discuss ad hoc arbitrations, the relevant provisions of the Arbitration (Scotland) Act 2010 are discussed – although one small gripe would be that at these points they could also have included the provisions of the English Arbitration Act 1996 similarly extended, assuming that the target audience includes lawyers in the other parts of the UK.

The chapter on witness statements provides a helpful list of things to be included, and should be at hand when preparing such documents for an international arbitration. Unlike in ordinary Scottish practice, these statements are often evidence-in-chief and should be prepared with particular care.
The topic of “Instructions to an Expert” is also deftly handled and provides a lot of material to ensure your expert knows what the dispute is actually about, as well as giving him or her the exact instructions to save the client time and expense – two of the traditional strengths of arbitration over litigation.

There are some references to lesser-used institutional procedures (as in here in the UK), such as SIAC (the institutional rules of the Singapore International Arbitration Centre), and to ICSID (International Centre for Settlement of Investment Disputes) which is a very specialised area of practice with an extensive literature all of its own, but this is a minor detail and where they are included, it is, it seems, for the purposes of analogy with the more common forms of procedure.

There is a lot in this book, and for anyone contemplating practising in, and more importantly recommending to their clients, this evolving and interesting area of law, this book should be sitting on the bookshelf.