Arbitration Service Introduction
The Council of the Law Society of Scotland has become aware over recent years that while many people in Scotland consider Arbitration to be a suitable method of disposing of disputes because of its flexibility, its confidentiality and the fact that, in technical disputes, the Arbiter may be a person skilled in the particular field of dispute, there have been problems (1) in the appointment of a suitable Arbiter and in the adjustment of his terms of remuneration and (2) in disposing of the problems which arise in Arbitrations when the Arbiter cannot or should not continue in office.
The Council also considered that there was a need for a set of model rules capable of being used generally by Arbiters to govern the procedure of Arbitration.
The Council felt that the Society had a part to play in solving these problems because of the regular involvement of many of its members in Arbitration matters either as Arbiters, clerks or representatives of the parties. It has been decided, therefore, that the Society will operate an Arbitration Service.
The Service will provide:
(a) A style of Arbitration clause for insertion in contracts in terms of which
the President or Vice-President for the time being of the Society (hereinafter referred to as 'the President') shall appoint the Arbiter who will conduct any Arbitration under the Society's Rules.
(b) A style of submission to be used by parties who either wish to submit an existing dispute to an Arbiter appointed by the President but have no agreement to that effect or wish to amend or augment the existing provisions in a contract between the parties by including a provision for the appointment of an Arbiter by the President, in both cases wishing also that the Society's Rules apply.
(c) A style of agreement to be used by the parties to a dispute who do not wish the President to appoint an Arbiter but do wish to have the Arbitration conducted under the Society's Rules.
Where as a result of the use of such clauses or submissions the President is to appoint an Arbiter, the Arbiter will be appointed from a panel of Arbiters drawn up and maintained by the Society including persons with expertise in a wide variety of fields. Before the nomination is made, the officers of the Society will check that the Arbiter would be a suitable person for the conduct of the dispute and would not be unsuited by reason of conflict of interest or some circumstance disqualifying him from acting.
These arrangements will dispose of the problem which presently arises where an Arbiter is appointed and only then is some circumstance brought to light either by the parties or by the Arbiter making it unsuitable that he accept appointment. Further, the officers of the Society will negotiate between the Arbiter and the parties the remuneration of the proposed Arbiter. If the Society's procedure is adopted, an Arbiter will not be appointed until it is clear that his remuneration is at a rate acceptable to the parties.
The Society has prepared a comprehensive set of Rules intended to govern the conduct of Arbitrations where the Arbiter has been appointed by the Society. The Rules are suitable for use in an Arbitration before an Arbiter mutually chosen by the parties or appointed other than by the President if the parties are so minded.
In regard to the solving of problems arising during Arbitrations when the Arbiter cannot or should not continue in office and its Rules apply, the Society will provide a continuing service to Arbiters and parties enabling these problems to be dealt with. The Rules specify the circumstances in which intervention may be requested. Any necessary decision in such matters will be taken by the President.
