Book reviews

Dundas & Bartos on the Arbitration (Scotland) Act 2010

2nd edition

Hew Dundas and David Bartos

PUBLISHER: W GREEN

ISBN: 978-0414019270

PRICE: £80

Arbitration is the Cinderella of dispute resolution options in Scotland – always yearning to go to the ball. It yearns to return to former glories, where it was for many industries the centre of attention. With assiduous promotion through the Scottish Arbitration Centre, development of bespoke arbitration methods for the energy industry, and Scottish Government nominating arbitration as dispute resolution procedure of choice, the publication of this edition is timely.

The title unintentionally undersells the content. The aim of the 2010 Act was to codify the law of arbitration in Scotland in one convenient location. Accordingly, far from a mere commentary on a statute, the authors effectively deal with the whole of arbitration law in Scotland.

This is a substantial work. Far from adopting a parochial approach, it is replete with extensive citation from England & Wales and elsewhere. It does suffer one disadvantage arising, ironically, from an advantage of arbitration – the enshrining in the Act (s 15 and rule 26) of confidentiality (dealt with at pp 245 onwards). The inevitable effect is that other than in the few cases in the courts, many issues arising in practice will not emerge in publicly accessible material.

A notable feature of the Act is the statement of founding principles to which regard must be had (s 1, and echoed in the obligation on the arbitral tribunal in rule 24). As judicial decisions emerge, it will be interesting to see to what extent potential conflict between and among these principles emerges, e.g. between avoiding unnecessary delay and giving the parties a reasonable opportunity to put their case. As the authors point out (R24-48), this can often give rise to "a difficult balance".

On the practical side, courts and litigants will have to pay close attention to the rule governing sisting for arbitration. Judges inclined in the past to insist on full pleading of a case before sisting, and litigants inclined to refer to the arbitration clause belatedly in the proceedings, must now heed the clear words of s 10. There is a useful discussion at pp 49 onwards.

The authors do not hesitate to advance their own views from time to time. Readers will reach their own conclusion on the weight to be given to these comments. For this writer, the confidence expressed (28-41) that arbitrators will embrace new approaches and avoid being "trapped in the mire" of practices derived from litigation, may be overly optimistic. The analysis of SGL Carbon Fibres (45-06), in which the authors disagree with the court's conclusion, might also be thought to be bold.

For some practitioners, first contact with the Act will be considering whether an arbitration decision can be challenged, under rule 68 (serious irregularity) or rule 69 (error of law). In a full and comprehensive discussion, the authors helpfully range over English authority. Their discussion is commended. What is easy to overlook, given how the rules are structured, is that it is perfectly possible for an arbitrator's decision to be incorrect in law but not amenable to court challenge. The authors discuss at length one of the hurdles, i.e. for most decisions that the court should be satisfied that it is "obviously wrong" – and stress the height at which that bar has been fixed (70-19 onwards). A discussion on another requirement – that the tribunal was asked to decide the point – could perhaps usefully been expanded, especially where some arbitrations are conducted without legal assistance, and a requirement for labelling a point of law in the course of exchanges may run contrary to the drive for less formality rather than more.

There is usually a quirk somewhere. Rule 81 provides that an arbitrator "who treats any party unfairly is… to be deemed not to have treated the parties fairly". The authors dryly observe that the purpose of that rule "might appear unclear", and comment that it cannot now be recalled why the draftsman thought this was necessary!

To end on a personal comment, it is that those espousing arbitration – and the authors are clearly enthusiasts – should remember that the market is competitive. Focus on procedure and structure, is important, but, if arbitration becomes a process whereby poorly expressed or (perceived) bad decisions are made in an unchallengeable format leaving the underlying customer dissatisfied, Cinderella may never get to that ball.

The book can be happily commended to all with an interest in arbitration including those in other professions.

R Craig Connal QC

The Good Lawyer: Seeking Quality in the Practice of Law

Douglas O Linder and Nancy Levit

PUBLISHER: OXFORD UNIVERSITY PRESS

ISBN: 978-0199360239

PRICE: £14.75; E-BOOK £14.01

How would you define what a good lawyer is? Is it technical accomplishment? Is it vast expertise? Is it deep knowledge of a particular area? Or is there more to it? What qualities, in combination, make a good lawyer?

Linder and Levit think there are nine qualities that all good lawyers need. Amongst others, these include empathy, persuasiveness, courage, and serving the true interests of their clients. Each quality is analysed in a chapter, and done so in a readable manner, contrasting sociology, psychology, anecdote, statistics and looking at the careers of famous lawyers through history.

John Adams, the second President of the USA, defended eight British soldiers and their captain who faced charges of murder for the deaths of five Americans. Adams was considered an "enemy of his country" and saw his practice shrink in half. One of the Founding Fathers, a President of the USA, a titan of history, he believed the show of courage in defending (successfully!) was "one of the best pieces of service I ever rendered to my country". There are inspirational tales aplenty. The sort of examples lawyers, and their representatives, should be shouting about to the world.

In the chapter on valuing others in the legal community, the authors focus on Ted Olson, a Republican Attorney General under George W Bush, and David Boies, a Democrat lawyer, who worked together championing gay marriage in the courts. In a post-referendum Scotland, we could all learn from those who put their political differences to one side and work for the good of all.

In the final chapter, a study is cited where UC Berkeley professors conduct a study of lawyers that resulted in the identification of 26 competencies that underwrite good lawyering. How many of those are covered at law school? How many are focused on by training firms? How many are considered by lawyers in their professional development?

The Good Lawyer covers a broad sweep of lawyering and addresses numerous concerns relevant to lawyers – stress, incivility within the profession, the depressing prospect of billing clients in six-minute slots for the rest of a professional life. The sweep leads to a book that is easy to read and digest, but perhaps misses a little depth.

When I ask people "What sort of lawyer do you want to be?", they generally reply with the area of law ("banking", "defence work", "corporate"), or perhaps a field ("transactional", "litigator"). Few answer that they want to be a good lawyer. I wonder how many consider the concept at all? Ultimately though, when one hangs up one’s boots that is how many will want to look back on their career. So the concept is important.

In its own words: "It is not a guide to being a successful lawyer, if success is measured by win-loss records, fame, or financial reward. It also offers no promises of finding greater happiness in your career, though that might be a welcome side effect from following some of its suggestions.’. Amen to that. Hunt it out and read it.

Robert Marrs, senior manager, education and training, Law Society of Scotland