The Rules
Change of 1.1 If any Arbiter acting or appointed to act under these Rules resigns, withdraws, dies or Arbiter refuses to act then the President or Vice-President for the time being of the Law Society of Scotland (hereinafter referred to as 'the President') shall, upon application by the Arbiter, if in life, or by any arty to the Arbitration, on proof satisfactory to the President, declare the office of Arbiter vacant.
1.2 Should the Arbiter or any party to the Arbitration consider that the Arbiter is unable by reason of mental or physical infirmity to perform the duties of his office or is disqualified for any reason from performing the duties of his office, or has delayed unreasonably in the conduct of the Arbitration or in the making of any award therein, the President may, at the request of the Arbiter or any party to the Arbitration having heard the Arbiter and the parties if they or any of them wish to be heard, declare the office of Arbiter vacant.
1.3 If the President declares the office of Arbiter vacant, he shall have the power, after hearing the former Arbiter, or the representatives of a deceased Arbiter, and any party, if they or any of them wish to be heard, to order that the fees and outlays of the Arbiter who has vacated office, his clerk and any assessor, or a part of them, shall be met equally by the parties. The provisions of Rules 28.2, 28.4 and 28.5 shall apply to the exercise of this power.
1.4 Where the President declares the office of the Arbiter vacant and any party within a period of twenty-eight days of that declaration seeks the appointment of a new Arbiter, the President shall appoint a new Arbiter as if he had been empowered so to do by agreement of the parties and as if the new Arbiter had the same rights and obligations as the previous Arbiter. If the parties do not agree on the regard which should be given to the steps taken in the Arbitration down to the date when the office of Arbiter became vacant then, on the application of any party or of the new Arbiter, the President having heard the new Arbiter and any party should he or they wish to be heard, shall decide what regard shall be given to these matters.
1.5 Where the President appoints a new Arbiter in terms of Rule 1.4 hereof, he shall have power, in addition to the power granted under Rule 1.3 hereof, to order that any expense incurred prior to that date which is the subject of an order under Rule 1.3 shall be disposed of by the new Arbiter in terms of his powers under Rule 28.
1.6 Without prejudice to the foregoing Rules and for the avoidance of doubt, it shall be open to the President, on the request of the new Arbiter or any party to the Arbitration and having heard the new Arbiter and any party should he or any of them wish to be heard, to instruct any such new Arbiter to adopt any evidence heard and adequately recorded by shorthand writers or in notes by the previous Arbiter or his clerk as if heard by the new Arbiter after the date of his appointment.
1.7 Where in terms of the foregoing Rules the President is required to act, then (a) the Society shall be entitled to a reasonable fee for the services provided by the President and (b) the President shall be entitled to order the Arbiter or former Arbiter, the representatives of a deceased Arbiter, or one or more of the parties, to pay the fee to the Society mentioned above in such proportions as the President shall in his sole discretion decide.
General 2.1 The Arbiter shall, in addition to any statutory, contractual or common law powers he may have, be entitled:
Powers of the Arbiter
(1) to hold a preliminary meeting in order to identify or clarify the issues to be decided and discuss the procedures to be adopted in deciding them; he shall hold such a meeting if so requested by both parties
(2) (a) to hold such procedural Hearings as he thinks fit
(b) to consider motions from either or both parties either at such a procedural Hearing or by correspondence with the parties as he may in his sole discretion decide
(3) to give directions for the detention, storage, sale or disposal (including the disposal of the proceeds on such conditions as the Arbiter shall see fit) of the whole or any part of the subject-matter of the dispute at the expense of one or both of the parties
(4) to give directions for the preservation of any document or article which is or may become evidence in the Arbitration
(5) to order, after hearing the parties, the deposit of money or the provision of security (on terms stipulated by the Arbiter) to secure the whole or any part of the amounts or subject-matter in dispute, and/or to secure the expenses of one or more of the parties; money ordered to be deposited under this Rule shall be paid as directed by the Arbiter into a separate interest-bearing account in name of the Arbiter or his clerk to be held in trust for the party or parties entitled thereto in terms of any award by the Arbiter
(6) to ordain any party at any stage of the proceedings, after hearing the parties, to deposit or to provide security (on terms stipulated by the Arbiter) in whole or in part for the Arbiter's fees and outlays and those of any person appointed by him under Rule 2.1(8) hereof, or appointed by the parties to assist him under Rule 3 hereof; any such deposit shall be made as provided for in Rule 2.1(5) hereof; the Arbiter shall also be entitled to make an interim order for the payment of his, his clerk's and any assessor's fees and outlays in respect of the period prior to said interim award
(7) to order, where disputes or differences have arisen under two or more contracts, each dispute or difference being concerned wholly or mainly with the same subject-matter and the resulting Arbitrations have been referred to the same Arbiter under these Rules, with the agreement of all the parties in the Arbitrations, that the whole or any part of the matters at issue shall be heard together upon such terms or conditions as the Arbiter thinks fit; where such an order has been made under this rule the Arbiter shall make and publish separate awards and reasons except that the parties to the Arbitrations may together require the Arbiter to make and publish one award and reasons therefore.
(8) to appoint a solicitor or advocate to act as clerk.
2.2 The Arbiter shall exercise his powers, whether express or implied, in a judicial manner.
Appointment 3 If the parties so direct him in writing, the Arbiter shall appoint a legal,
Of technical or other assessor nominated by the parties to assist him in the conduct
Assessor of the Arbitration; any such assessor shall attend all Hearings unless the parties and the Arbiter agree otherwise.
The Arbiter shall have regard to but shall not be bound to adopt any views expressed by the assessor.
Time and 4.1 The Arbiter shall fix a time and place for all procedural or other meetings or
Place Hearings and the Arbiter or his clerk shall intimate to each party said time and place at least fourteen days in advance, unless the parties by mutual agreement waive such notice.
Cost of 4.2 The parties shall be equally responsible initially for the
Accommodation cost of accommodation, but said cost will be dealt with as provided in Rule 28 hereof.
Representation 5 Any party may be represented by a solicitor, advocate or any other person providing such other person has written authority from the party to represent him or her. A party intending to be so represented shall notify the other party and the Arbiter or his clerk forthwith. A person shall not be prevented from representing a party because he is or may also be a witness in the proceedings. Nothing shall prevent a party from being represented by different persons at different times.
Interpreter 6 The Arbiter shall make the necessary arrangements for the services of an interpreter if so requested by one or both parties. The party or parties requesting the same shall be responsible initially for the cost thereof, but said cost will be dealt with as provided in Rule 28 hereof.
Shorthand
Writers 7 The Arbiter may if authorised by the parties make arrangements for shorthand
writers to take notes of evidence. The parties shall be equally responsible initially for the cost thereof, but said cost will be dealt with as provided in Rule 28 hereof.
Pleadings, 8.1 Unless otherwise provided herein the Arbiter shall have
Procedure and complete discretion to order and control the pleadings in and
Production of the procedure of the Arbitration
Documents 8.2 If after a Hearing the Arbiter considers that pleadings are irrelevant, incompetent or lacking in specification he will advise the parties accordingly. He will also fix a period within which the parties may seek leave to amend if they are so minded. If one or other of the parties does seek leave to amend then the Arbiter will decide whether to allow such amendment and if so to what extent and on what terms. If neither party chooses to amend then the Arbiter may issue an award excluding from probation any pleadings which in his view are irrelevant, incompetent or lacking in specification, rejecting in whole or in part the case of a party, or rejecting in whole or in part the answer by a party to the case of the other party. Subject to any right of appeal to the courts a decision of the Arbiter on these matters shall be final and neither party shall seek either in the Arbitration or in any other proceedings or Arbitrations to raise in issue with the other any matter so rejected or to the extent rejected or any case so rejected. The Arbiter may, in terms of Rule 28 hereof, award expenses in connection with such a Hearing, such amendment, or such disposal or part disposal of the issues in the Arbitration
8.3 The Arbiter may fix a date for the lodging of productions prior to a Hearing. Any production not lodged on or before such date may be relied upon at the proof only with the consent of both parties or with the authority of the Arbiter on cause shown to his satisfaction
8.4 The Arbiter may order any party at any stage in the Arbitration including the course of a Hearing to lodge any document in his possession, custody or power which relates either generally or specifically to matters raised in the pleadings. Parties shall be afforded an opportunity to examine any such documents and make representations concerning them
8.5 The Arbiter may authorise any party to petition the court for
(1) a warrant to compel the attendance of a witness
(2) the grant of a commission to take evidence
(3) a commission to recover documents and other evidence.
Hearings 9 Hearings will take the form determined by the Arbiter and an interlocutor of the Arbiter allowing a Hearing shall specify the nature of the Hearing.
Judicial
Knowledge 10 The Arbiter may rely upon his own knowledge and expertise to such an extent as he thinks fit.
If during the course of a Hearing the Arbiter considers that he will rely on his own knowledge and/or expertise on a matter on which no evidence has been led and which is not a matter of admission he shall inquire from the parties whether evidence is to be led in that matter and if not he shall forthwith intimate his views to the parties and give them an opportunity to lead evidence and comment on that matter.
Hearings and Evidence 11 In all circumstances the Arbiter shall afford full and equal opportunity to the parties for the presentation of their cases.
12 The parties are entitled to attend Hearings. While evidence is being heard the Arbiter shall exclude any witnesses who have not yet given evidence other than the parties and persons not otherwise expressly permitted by the Arbiter to be present.
13 The Arbiter may adjourn any Hearing whether on the motion of a party or parties or ex proprio motu.
14 The Arbiter may require witnesses to testify under oath or to affirm.
15 All witnesses shall submit to cross-examination unless the Arbiter and the parties agree otherwise.
16 The Arbiter may make intimation to any party who after due notice fails to be present or represented at a Hearing that he is required-to attend at a future Hearing of the Arbitration and that if he fails so to attend or be represented the Arbiter shall be entitled to proceed in his absence. In the event of the Arbiter so proceeding in the absence of a party he may issue an award without hearing evidence or he may require the other party or parties to submit such evidence as the Arbiter deems necessary before making an award.
17 The Arbiter shall be the judge of the admissibility of evidence tendered. Subject to the terms of Rules 8.5(2) and 16 above, all evidence shall be taken in the presence of the Arbiter and of all parties except where a party has expressly or by implication waived his right to be present.
18 If the parties agree, the Arbiter may order the lodging of precognitions and/or reports and treat these as evidence in chief of the witnesses concerned.
19 In the course of a Hearing the Arbiter may put questions to any witness as and
when he thinks fit.
20 If the Arbiter finds it necessary to make an inspection he shall so advise the parties and give them reasonable notice to enable them to be present or represented.
21 The Arbiter may dispense with oral Hearings if the parties agree, except that the Arbiter may, notwithstanding the agreement of the parties, require oral Hearings if he determines that there are factual matters in dispute.
Waiver 22 Any party who becomes aware that any provision or requirement of these Rules has not been complied with and who fails to state an objection thereto within a reasonable time shall be deemed to have waived the right to object.
Time 23 The Arbiter on cause shown may extend any period of Extension time fixed by these rules or by him whether or not that period of time has expired. The Arbiter shall notify the parties of any such extension of time.
Notices 24 Any notices, orders or other papers requiring to be intimated or served on a party shall be served on such party by recorded delivery at his last known address, which service shall be deemed to be sufficient notice.
The Award 25.1 The award shall be in writing.
25.2 Whenever there is more than one Arbiter the award must be by at least a majority.
25.3 The award shall be signed by the Arbiter or in the event of there being more than one Arbiter, by at least a majority of them.
25.4 When the Arbiter has made and signed the award he shall so inform the parties in writing and shall specify how and where it may be taken up. He may make due payment of the fees and expenses of him, his clerk and any assessor a condition precedent to the issuing of the award.
25.5 The Arbiter may issue proposed findings and shall issue proposed findings if one of the parties so requests.
25.6 The Arbiter may, or if requested by one of the parties before he has signed his award shall, state his reasons for all or any part of his award.
25.7 The Arbiter may at any time, unless parties agree otherwise, grant an interim award and for this purpose shall have power to award payment by one party to another of a sum representing a reasonable proportion of the final net amount which in the Arbiter's opinion that party is likely to be ordered to pay after determination of all the issues in the Arbitration and after taking into account any answer or counter-claim upon which the other party may be entitled to rely.
25.8 The Arbiter may issue partial awards in respect of particular aspects of the matters in dispute.
25.9 The Arbiter shall have power to order the party against whom an interim or partial award has been granted to pay part or all of the sum awarded into an account such as is referred to in Rule 2.1(5).
25.10 An interim award shall be final and binding upon the parties unless and until it is varied by any subsequent award made and published by the same Arbiter or by any other Arbiter having jurisdiction over the matters in dispute. Any such subsequent award may order repayment of monies paid in accordance with the interim award.
26 If the parties settle part or the whole of their dispute during the course of the Arbitration the Arbiter at their request may set forth the terms of the agreed settlement in an award. Such agreement may deal with liability for the expenses of the parties and of the fees and outlays of the Arbiter, his clerk and any assessor, but without prejudice to the Arbiter's powers under Rule 28 hereof.
27 No judicial proceedings by a party relating to the subject matter of the Arbitration shall be deemed to be a waiver of a party's right to arbitrate. Parties to these rules shall be deemed to have consented to decree by any competent court conform to the award.
Expenses
28.1 The Arbiter shall have power to order one party to the Arbitration to meet wholly or partly the taxed expenses of the other party (including expenses under Rules 1. 5, 4.2, 6 and 7) and shall intimate the basis on which the same are to be taxed and the person before whom the account is to be taxed. Expenses dealt with hereunder do not include expenses dealt with under Rules 28.2, 28.3 and 28.4.
28.2 The Arbiter shall have power to order the parties to the Arbitration or either of them to meet the reasonable fees and outlays of him, his clerk and any assessor in such proportions as he may think fit. The fees and outlays of a legally qualified Arbiter, clerk or assessor shall be taxed and such fees shall be deemed to be reasonable for the purposes of this clause; any such order shall state the basis upon which the fees and outlays are to be taxed and the person before whom the account is to be taxed.
28.3 The Arbiter shall also have power to order one party to reimburse the other the amount of any sum paid by the other in respect of an interim order made under Rule 2.1(6) in respect of his, his clerk's and any assessor's fees and outlays.
28.4 Fees and outlays for an Arbiter, his clerk and any assessor may include fees and outlays in respect of cancelled Hearings.
28.5 Notwithstanding the provisions set out in this Rule, the parties shall be liable jointly and severally to the Arbiter for the fees and outlays (fixed as aforesaid) of the Arbiter and his clerk and any assessor without prejudice to the rights of parties thereafter to seek relief inter se in terms of any award issued by the Arbiter.
Definitions
Society
The 'Society' means The Law Society of Scotland.
Arbiter
Where the Arbitration is being conducted by more than one Arbiter acting with or without an oversman, references in the Rules to 'Arbiter' shall be deemed to be references to a majority of the Arbiters (or both of them if there are two) or a majority of the Arbiters and the oversman.
Award
An 'award' is a judgment or final decision of an Arbiter which disposes fully of all the questions submitted to the Arbiter.
Interim award
An 'interim award' is an award made in the course of an Arbitration which has the full effect of an award as regards enforceability.
Partial award
A 'partial award' is an award dealing fully with only one or more (but not all) of the questions submitted to the Arbiter.
Interlocutor
An 'interlocutor' is a decision or order of the Arbiter which does not finally dispose of the Arbitration but which is given in the course of the proceedings.
Proposed findings
'Proposed findings' are an indication to the parties of the award which an Arbiter proposes to make.
Pleadings
'Pleadings' are the written averments, pleas, admissions and denials of each party to the Arbitration.
Preliminary pleas
'Preliminary pleas' are brief statements of legal propositions which if accepted by the Arbiter would dispose of the claim without inquiry into the facts or govern future procedure in the Arbitration.
