Modern arbitration law should be fully applied, Faculty submits

It is time to remove a “blot on the landscape” of Scottish arbitration law, the Faculty of Advocates said today.

In its response to the Scottish Government's proposal to remove an opt-out from the Arbitration (Scotland) Act 2010, Faculty agrees but calls on ministers to go further.

It wants them to implement a section of the Arbitration (Scotland) Act 2010, dealing with statutory arbitrations, which has still to come into effect.

Ministers are planning to remove, from the start of next year, a provision of the 2010 Act which allows parties to agree that the Act will not apply to an arbitration agreement made prior to 7 June 2010.

In its response to a consultation, Faculty agreed with the proposal, stating: “We are unaware of any parties agreeing to opt into the old law… Given this and the obvious benefits of the 2010 Act, there is no reason to continue with the ‘opt-in’ provisions in s 36(3).”

However, Faculty continued: “Regrettably, the making of the Order will NOT repeal all old arbitration law. The wholly inadequate and defective old law will continue to be in force in relation to statutory arbitrations for which there are many provisions on the statute book. Many are important provisions such as arbitration of compensation claims arising out of the activities of statutory public bodies.

“Section 16 of the 2010 Act, which is designed to apply the Act to statutory arbitrations, remains to be brought into force more than six years after the rest of the Act.

“There is no reason why s 16 cannot be brought into force at the same time as the Order… The Faculty urges the Scottish Government to bring s 16 into force and achieve the full repeal of old arbitration law by 1 January 2017.”

It added: “The continuing applicability of the old law for statutory arbitrations is a blot on the landscape of Scottish arbitration law.”

Click here to view the full response.