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The Advantages of Scottish Arbitration Brandon J Malone Solicitor Advocate Chairman Scottish Arbitration Centre.

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Presentation on theme: "The Advantages of Scottish Arbitration Brandon J Malone Solicitor Advocate Chairman Scottish Arbitration Centre."— Presentation transcript:

1 The Advantages of Scottish Arbitration Brandon J Malone Solicitor Advocate Chairman Scottish Arbitration Centre

2 Advantages of Scottish Arbitration Confidentiality Commerciality International enforceability Limited rights of appeal Control of costs

3 Confidentiality Arbitration is a private process In Scotland, under the Arbitration (Scotland) Act 2010, arbitration is confidential A breach of confidentiality is actionable Litigation is a public process Court reports are published online and in legal journals

4 Application No 3 of 2011 Lord Glennie –Anonymity In giving my decision I have tried to avoid setting out any details which might betray the identity of the parties. Explanation of the points at issue is necessarily lacking in particulars.

5 Application No 2 of 2011 Lord Glennie –In setting out an explaining my decision, I have attempted to respect both the letter and spirit of this requirement for anonymity

6 Application No 2 of 2011 Lord Glennie: It was agreed at the end of the hearing that in the first instance I should issue my Opinion to the parties without publishing it more widely, to enable them to make representations as to whether there should be publication and, if so, whether any details could be omitted without removing from my decision such sense as it might otherwise have

7 Commerciality Arbitrators can be selected on the basis of industry experience An industry arbitrator comes to the process with an understanding of the wider commercial context Judges, whilst expert in the law, are unlikely to have day to day experience of the issues The function of a judge is to decide between the cases presented

8 International Enforceability Arbitration –New York Convention 1958 –Every significant commercial country in the world is a party to the Convention –Sovereign states can submit to arbitration Litigation –Few countries have a comprehensive system of reciprocal enforcement treaties –Some sovereign states will claim immunity from litigation

9 Limited Rights of Appeal Arbitration under the 2010 Act –Parties can agree to limit appeals –Appeals in respect of points of law can be excluded –Where an appeal is competent the Court must consent –No appeal to London Litigation –An unsuccessful party can appeal as of right to the Court of Session, and with the consent of two Counsel to the UK Supreme Court

10 Control of Costs Arbitration –Parties can agree to cap recovery of costs –Parties can agree to exclude recovery of legal costs –The lack of a right of appeal will necessarily restrict cost Litigation –Expenses follow success –There is no cap on recoverable expense

11 Selling Scottish Arbitration Location 2010 Act / the Scottish Arbitration Rules Supportive Courts Specialist lawyers Choice of arbitrators Expense

12 Location Scotland has –Top notch venues for arbitration –Good transport links to Europe and the world –English spoken –Golf –Scenery –Etc The Rest of the World –The weather

13 The Law Scotland –Hybrid Common/Civil law –Modern and innovative Arbitration Act –Modern and flexible arbitration rules –Combines the best aspects of the UNCITRAL rules and the 1996 Act with innovative provisions The Rest of the World –Mixed – some common law (ex: England, America) some civil law (ex: France, Italy) –Arbitration Acts vary from jurisdiction to jurisdiction

14 Supportive Courts Scotland –Reputation for commerciality and pragmatism –Positive and supportive decisions to date The Rest of the World –Varies wildly from jurisdiction to jurisdiction –Some courts are very supportive (eg England and Wales) –Others less so

15 Specialist Lawyers Scotland –Scotland is home to many firms with a UK wide and international reach –The “Common sense” of Scottish lawyers The Rest of the World –Many international firms specialise in arbitration

16 Choice of Arbitrators Scotland –Parties are free to choose any international arbitrator The Rest of the World –Parties are free to choose any international arbitrator

17 Expense Scotland –Costs are estimated to be 40% of the overall cost of arbitrating in one of the other main centres –No discovery procedure – therefore immediate savings London, Paris, New York –Costs are comparatively high

18 Conclusions Arbitration for Scotland –Arbitration offers a confidential and commercial solution for disputing parties –Arbitration compares favourably with litigation in terms of overall timescale and expense Scotland for International Arbitration –With the Arbitration (Scotland) Act 2010, Scotland has one of the best systems of arbitration in the world –The expertise and common sense of Scots lawyers and judges combined with the cost advantages of arbitrating here make it the obvious choice for international business

19 Scottish Arbitration Centre

20 Background Not for profit company limited by guarantee All Arbitral Appointment Referees invited to participate

21 Member organisations Chartered Institute of Arbitrators Faculty of Advocates Law Society of Scotland RICS Scotland Scottish Government

22 Structure Board: –Comprised of two directors from each member organisation Chief Executive – Andrew Mackenzie –Seconded from Scottish Government Honorary President and two Vice Presidents Arbitral Appointments Committee

23 David Carrick, Senior Vice President, Hill International, Edinburgh Teresa Cheng SC, Des Voeux Chambers, Hong Kong Vincent Connor, Head of Asia Pacific, Pinsent Masons, Hong Kong Thomas Halket, Partner, Halket Weitz, New York Kaj Hobér, Mannheimer Swartling, Stockholm Elie Kleiman, Partner, Freshfields, Paris Lindy Patterson QC, Dundas and Wilson, Edinburgh

24 Objectives Promotion of Scottish arbitration Promotion of Scotland as a place to arbitrate

25 Our arbitration suites Dolphin House

26 Activities Discussing Scottish arbitration at domestic conferences and events Representing Scotland at international arbitration events Working with Arbitral Appointment Referees on education and standards in Scotland

27 Key projects Institutional rules Domestic promotion International promotion Individual and corporate membership Focus on energy arbitration

28 The role of the Centre Today and the future –The voice of arbitration in Scotland –The face of Scottish arbitration abroad –Government consultee and policy shaper –Future coordinator of arbitration training amongst the Scottish professions –Future facilitator of serviced arbitrations



31 @scotarbcentre @energydispute

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