Arbitration has a long history in Scotland, spanning some seven hundred years, and yet in the Arbitration (Scotland) Act 2010 (“the Scottish Act”) Scotland has one of the most modern systems of arbitration in the world.
The Scottish Act is similar to the 1996 Act in use in England and Wales, and will feel instantly familiar to international arbitration practitioners. Indeed, the Scottish Courts have held that English case law applying to the Act in force there since 1996 can be used to interpret the Scottish Act. This provides predictability and certainty to the Scottish regime. However, there are some key differences:
- Arbitration in Scotland is a confidential process, and unlike the position in most jurisdictions, the duty to treat proceedings as confidential is backed up by legislation. The obligation to treat all matters relating to the arbitration confidentially is enshrined in the Scottish Act, and is has been strongly backed by the Scottish courts.
- If a challenge is made to court in respect of an arbitration, the courts will keep the parties’ names, and details of the case anonymous, so as to preserve confidentiality. It is possible to persuade the Court that the case should not be reported at all.
- There are no appeals on points of law where the arbitration is an international arbitration. Where the arbitration is ‘domestic’ (concerns two parties based in Scotland), the parties can exclude ‘legal error’ appeals by agreement.
- To reduce unnecessary court challenges, the Scottish Act limits appeals to the Court, and from the Court to the appeal court (the Inner House). There is no appeal to the Supreme Court.