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Arbitration (Scotland) Bill
[CONSULTATION DRAFT]

CONTENTS

Section
Introductory
1 Founding principles
2 Principal terms
3 Juridical seat of arbitration
Arbitration agreements
4 Arbitration agreements
5 Separability
Scottish Arbitration Rules
6 Scottish Arbitration Rules
7 Mandatory rules
8 Default rules
Statutory arbitration
9 Statutory arbitration: special provisions
10 Power to adapt enactments providing for statutory arbitration
Recognition and enforcement of New York Convention awards
11 New York Convention awards
12 Recognition and enforcement of New York Convention awards
13 Refusal of recognition or enforcement
14 Evidence to be produced when seeking recognition or enforcement
15 Saving for other bases of recognition or enforcement
Supplementary
16 Prescription and limitation
17 Amendment of Conveyancing (Scotland) Act 1924 (c.27)
18 Arbitral appointments referee
19 Arbitrability of disputes
Final provisions
20 Transitional provision
21 More definitions
22 Ancillary provision
23 Orders
24 Crown application
25 Repeals
26 Commencement
27 Short title

Schedule 1 -Scottish Arbitration Rules
Part 1 -Commencement and constitution of tribunal etc.
Rule 1 Commencement of arbitration
Rule 2 Appointment of tribunal
Rule 3 Eligibility to act as tribunal member
Rule 4 Number of tribunal members
Rule 5 Method of appointment
Rule 6 Failure of appointment procedure
Rule 7 Tribunal members' duty to disclose circumstances relating to impartiality
Rule 8 Tribunal member's tenure
Rule 9 Removal of tribunal member
Rule 10 Resignation of tribunal member
Rule 11 Challenge to appointment of tribunal member
Rule 12 Removal of tribunal members by Outer House
Rule 13 Dismissal of tribunal by Outer House
Rule 14 Removal and dismissal by court: supplementary
Rule 15 Reconstitution of tribunal
Rule 16 Tribunal members nominated in arbitration agreements
Part 2 -Tribunal functions
Rule 17 Principal duties
Rule 18 Further duties
Rule 19 Tribunal to rule on own jurisdiction
Rule 20 Objections to a tribunal's jurisdiction
Rule 21 Appeal against tribunal's ruling on objection
Rule 22 Tribunal decisions
Rule 23 Oversmen
Part 3 -Parties' duties
Rule 24 Duties relating to conduct of arbitration
Rule 25 Powers relating to default by a party
Part 4 -Arbitral proceedings
Rule 26 Procedure and evidence
Rule 27 Place of tribunal meetings
Rule 28 Power to appoint clerk etc.
Rule 29 Statements of claim and defence
Rule 30 Failure to submit claim or defence timeously
Rule 31 Hearings and examinations
Rule 32 Use of experts
Rule 33 Powers relating to property
Rule 34 Duty to give copies of documents
Rule 35 Representation of parties
Rule 36 Variation of time limits
Rule 37 Consolidation of proceedings
Rule 38 Suspension of legal proceedings
Rule 39 Court's powers in relation to arbitration
Part 5 -Awards
Rule 40 Rules applicable to the substance of the dispute
Rule 41 Form of award
Rule 42 Award to contain statement of reasons
Rule 43 Day award takes effect
Rule 44 Power to make interim awards
Rule 45 Power to make partial awards
Rule 46 Power to produce draft awards
Rule 47 General powers in relation to awards
Rule 48 Power to withhold award on non-payment of fees or expenses
Rule 49 Award to be final and binding on parties
Rule 50 Award treated as made in Scotland
Rule 51 Arbitration to end on last award or early settlement
Rule 52 Enforcement of award
Rule 53 Correcting an award
Part 6 -Challenging awards
Rule 54 Challenging the award: substantive jurisdiction
Rule 55 Challenging the award: serious irregularity
Rule 56 Challenging the award: legal error
Rule 57 Challenging the award: supplementary
Rule 58 Appeal costs
Rule 59 Effect of Outer House's decision on appeal
Part 7 -Expenses
Rule 60 Arbitration expenses
Rule 61 Security for expenses
Rule 62 Fees and expenses of tribunal members
Part 8 -Miscellaneous
Rule 63 Immunity of tribunal etc.
Rule 64 Immunity of appointing arbitral institution etc.
Rule 65 Immunity of experts, witnesses and legal representatives
Rule 66 Raising the question of the tribunal's jurisdiction with the court
Rule 67 Loss of right to object
Rule 68 Consideration where tribunal member adjudged not to be impartial
Rule 69 Death of party
Rule 70 Formal communications
Rule 71 Periods of time
Schedule 2 -Repeals
Index

Arbitration (Scotland) Bill

[CONSULTATION DRAFT]

An Act of the Scottish Parliament to make provision about arbitration.

Introductory

1 Founding principles

The founding principles of this Act are-

(a) that the object of arbitration is to resolve disputes fairly, impartially, quickly and without incurring unnecessary expense,

(b) that parties should be free to agree how to resolve disputes (subject only to such safeguards as are necessary in the public interest),

(c) that the court should not intervene in an arbitration except as provided by the Scottish Arbitration Rules.

Anyone construing this Act is to have regard to the founding principles when doing so.

2 Principal terms

(1) In this Act, unless the contrary intention appears-

"arbitration" includes domestic and international arbitration,

"dispute" means any difference (whether contractual or not),

"party" means a party to an arbitration,

"rules" means the Scottish Arbitration Rules (see section 6), and

"tribunal" means an arbitrator or panel of arbitrators.

(2) References to "an arbitration", "the arbitration" or "arbitrations" are references to a particular arbitration process or, as the case may be, to particular arbitration processes.

(3) References to a tribunal conducting an arbitration are references to the tribunal doing anything in relation to the arbitration, including-

(a) making a decision about procedure or evidence, and

(b) making an award.

(4) The words and other expressions listed in the index are defined or otherwise explained for the purposes of this Act by the provisions indicated in the index.

Juridical seat of arbitration

Arbitration agreements

4 Arbitration agreements

An "arbitration agreement" is-

(a) an agreement to submit a present or future dispute to arbitration, or

(b) in the case of statutory arbitration, the enactment which provides for a dispute to be submitted to arbitration.

5 Separability

(1) An arbitration agreement which forms (or was intended to form) part only of an agreement is to be treated as a distinct agreement.

(2) In particular, an arbitration agreement is not void, voidable or otherwise ineffective only because the agreement of which it forms part is void, voidable or otherwise ineffective.

(3) For example, a dispute about the validity of an agreement which includes an arbitration agreement may be arbitrated in accordance with that arbitration agreement.

Scottish Arbitration Rules

6 Scottish Arbitration Rules

(1) Every arbitration seated in Scotland is to be governed by the rules set out in schedule 1 (the "Scottish Arbitration Rules").

(2) The following rules also apply to arbitrations seated outwith Scotland or where no place of arbitration has been determined-

rule 38 (suspension of legal proceedings),

rule 52 (enforcement of award).

7 Mandatory rules

(1) The following rules, called the "mandatory rules", cannot be disapplied by an arbitration agreement, by any other agreement between parties or by any other means-

rule 3 (eligibility as tribunal member)

rule 8 (tribunal member's tenure)

rules 12 to 14 (court's power to remove tribunal member or dismiss tribunal)

rules 17 to 20 (tribunal functions)

rule 32(4) (agreement not to have experts invalid if entered into after arbitration begins)

rule 38 (suspension of legal proceedings)

rule 39(1) (attendance of witnesses and disclosure of evidence)

rule 41 (form of award)

rule 44 (power to make interim awards)

rule 48 (power to withhold award if fees or expenses not paid)

rule 52 (enforcement)

rules 54 to 59 (challenging award)

rule 60(6) (prohibition on disapplying rule on arbitration expenses)

rule 62 (tribunal members' fees and expenses)

rules 63 to 65 (immunity)

rule 67 (loss of right to object)

8 Default rules

(1) The rules which are not mandatory rules are called the "default rules".

(2) Unlike mandatory rules, parties may agree to adapt or disapply a default rule.

(3) Parties may so agree-

(a) in the arbitration agreement, or

(b) by any other means at any time before or after the arbitration begins.

(4) Parties are to be treated as having agreed to disapply a default rule-

(a) if or to the extent that the rule is disapplied by or inconsistent with-

(i) the arbitration agreement, or

(ii) anything done with the agreement of the parties, or

(b) if they choose a law other than Scots law as the applicable law in respect of the rule's subject-matter.

This subsection does not affect the generality of subsections (2) and (3).

Statutory arbitration

9 Statutory arbitration: special provisions

(1) "Statutory arbitration" is arbitration pursuant to an enactment which provides for a dispute to be submitted to arbitration.

(2) None of the Scottish Arbitration Rules (or other provisions of this Act) apply to a statutory arbitration if or to the extent that they are excluded by, or are inconsistent with, any provision made by virtue of any other enactment relating to the arbitration.

(3) Every statutory arbitration is to be taken to be seated in Scotland.

(4) None of the following rules apply in relation to statutory arbitration-

rule 36 (variation of time limits)

rule 38(3) (restriction on arbitration agreement preventing legal proceedings)

rule 57(8) (power to declare provision of arbitration agreement void)

rule 69 (death of party)

(5) Despite rule 37, parties to a statutory arbitration may not agree to-

(a) consolidate the arbitration with another arbitration,

(b) hold concurrent hearings, or

(c) authorise the tribunal to order such consolidation or the holding of concurrent hearings,

unless the arbitrations or hearings are to be conducted under the same enactment.

10 Power to adapt enactments providing for statutory arbitration

Ministers may by order-

(a) modify any of the Scottish Arbitration Rules, or any other provisions of this Act, in so far as they apply to statutory arbitrations (or to particular statutory arbitrations),

(b) make such modifications of enactments which provide for disputes to be submitted to arbitration as they consider appropriate in consequence of, or in order to give full effect to, any of the Scottish Arbitration Rules (or any other provisions of this Act).

Recognition and enforcement of New York Convention awards

11 New York Convention awards

(1) A "Convention award" is an award made in pursuance of a written arbitration agreement in the territory of a state (other than the United Kingdom) which is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted by the United Nations Conference on International Commercial Arbitration on 10th June 1958.

(2) An award is to be treated for the purposes of this section as having been made where the arbitration was seated.

(3) A declaration by Her Majesty by Order in Council that a state is a party to the Convention (or is a party in respect of any territory) is to be conclusive evidence of that fact.

12 Recognition and enforcement of New York Convention awards

(1) A Convention award is to be recognised as binding on the persons as between whom it was made (and may accordingly be relied on by those persons in any legal proceedings in Scotland).

(2) The court may order that a Convention award is to be enforced as if it were an extract registered decree bearing a warrant for execution granted by the court.

13 Refusal of recognition or enforcement

(1) Recognition or enforcement of a Convention award may be refused only in accordance with this section.

(2) Recognition or enforcement of a Convention award may be refused if the person against whom it is invoked proves-

(a) that a party was under some incapacity under the law applicable to the party,

(b) that the arbitration agreement was invalid under the law which the parties agreed should govern it (or, if the parties fail to so agree, under the law of the place where the agreement was made),

(c) that the person-

(i) was not given proper notice of the arbitral process or of the appointment of the tribunal, or

(ii) was unable to present the person's case,

(d) that the tribunal was constituted, or the arbitration was conducted, otherwise than in accordance with the agreement of the parties (or, failing such agreement, the law of the place where the arbitration is taking place).

(3) Recognition or enforcement of a Convention award (or any part of it) may be refused if the person against whom it is invoked proves that the award (or that part of it)-

(a) deals with a dispute not contemplated by or not falling within the submission to arbitration, or

(b) contains decisions on matters beyond the scope of that submission,

(c) is not yet binding on the person, or

(d) has been set aside or suspended by a competent authority.

(4) Recognition or enforcement of a Convention award (or any part of it) may be refused if-

(a) the award or that part of it relates to a matter which is not capable of being settled by arbitration, or

(b) to do so would be contrary to public policy.

(5) The court before which a Convention award is sought to be relied on may, if an application for the setting aside or suspension of the award is made to a competent authority-

(a) adjourn the decision on recognition or enforcement of the award,

(b) on the application of the party claiming recognition or enforcement, order the other party to provide suitable security.

(6) In this section "competent authority" means a person who has authority to set aside or suspend the Convention award concerned in the country in which (or under the law of which) the Convention award concerned was made.

14 Evidence to be produced when seeking recognition or enforcement

(1) A person seeking recognition or enforcement of a Convention award must produce-

(a) the duly authenticated original award (or a duly certified copy of it), and

(b) the original arbitration agreement (or a duly certified copy of it).

(2) Such a person must also produce a translation of any award or agreement which is in a language other than English (certified by an official or sworn translator or by a diplomatic or consular agent).

15 Saving for other bases of recognition or enforcement

Nothing in sections 11 to 14 affects any other right to rely on or enforce a Convention award at common law or in pursuance of any other enactment.

Supplementary

16 Prescription and limitation

(1) The Prescription and Limitation (Scotland) Act 1973 (c.52) is amended as follows.

(2) In section 4 (positive prescription: interruption)-

(a) in subsection (3)(a), for the words from "and" to "served" substitute ", the date when the arbitration begins",

(b) for subsection (4) substitute-

"(4) An arbitration begins for the purposes of this section-

(a) when the parties to the arbitration agree it begins, or

(b) in the absence of such agreement, in accordance with rule 1 of the Scottish Arbitration Rules (see section 6 of, and schedule 1 to, the Arbitration (Scotland) Act 2008 (asp 00).".

(3) In section 9 (negative prescription: interruption)-

(a) in subsection (3), for the words from "and" to "served" substitute "the date when the arbitration begins",

(b) in subsection (4), for "preliminary notice" substitute "the date when the arbitration begins".

(4) After section 19C, insert-

" 19D Interruption of limitation period: arbitration

(1) Any period during which an arbitration is ongoing in relation to a matter is to be disregarded in any computation of the period specified in section 17(2), 18(2), 18A(1) or 18B(2) of this Act in relation to that matter.

(2) In this section, "arbitration" means-

(a) any arbitration in Scotland,

(b) any arbitration in a country other than Scotland, being an arbitration an award in which would be enforceable in Scotland.".

(5) In section 22A(4), for the words from "and" to "served" substitute "the date when the arbitration begins (within the meaning of section 4(4) of this Act)".

(6) After section 22C, insert-

" 22CA Interruption of limitation period for 1987 Act actions: arbitration

(1) Any period during which an arbitration is ongoing in relation to a matter is to be disregarded in any computation of the period specified in section 22B(2) or 22C(2) of this Act in relation to that matter.

(2) In this section, "arbitration" means-

(a) any arbitration in Scotland,

(b) any arbitration in a country other than Scotland, being an arbitration an award in which would be enforceable in Scotland.".

17 Amendment of Conveyancing (Scotland) Act 1924

In section 46 (extract decree of reduction to be recorded) of the Conveyancing (Scotland) Act 1924 (c.27), after subsection (2) insert-

"(2A) For the purposes of this section, an award made by a tribunal in accordance with the Arbitration (Scotland) Act 2008 (asp 00) which orders reduction of a deed, decree or instrument is to be treated as if it were an extract of a decree of reduction of the deed, decree or instrument.".

18 Arbitral appointments referee

Ministers may by order specify persons or types of persons who may act as an arbitral appointments referee for the purposes of the Scottish Arbitration Rules.

19 Arbitrability of disputes

Nothing in this Act makes any dispute capable of resolution by arbitration if it would not otherwise be capable of being so resolved.

Final provisions

20 Transitional provision

This Act does not apply to-

(a) arbitrations in pursuance of arbitration agreements (other than those comprised in enactments) made before the day on which section 6 comes into force,

(b) statutory arbitrations begun before that day.

21 More definitions

In this Act, unless the contrary intention appears-

"auditor of court" means the Auditor of the Court of Session or the Auditor of an appropriate sheriff court,

"claim" includes counterclaim,

"court" means the Outer House or the sheriff (except in section 1 and rule 38, where it means any court),

22 Ancillary provision

(1) Ministers may by order make any supplementary, incidental, consequential, transitional, transitory or saving provision which they consider appropriate for the purposes of, or in connection with, or for the purposes of giving full effect to, any provision of this Act.

(2) Such an order may modify any enactment, instrument or document.

23 Orders

(1) Any Ministerial power under this Act to make orders is exercisable by statutory instrument.

(2) Any such power includes power to make-

(a) any supplementary, incidental, consequential, transitional, transitory or saving provision which Ministers consider appropriate,

(b) different provision for different purposes.

(3) A statutory instrument containing such an order (or an Order in Council made under section 11) is subject to annulment in pursuance of a resolution of the Scottish Parliament.

This subsection does not apply-

(a) to orders made under section 26(2) (commencement orders), or

(b) where subsection (4) makes contrary provision.

(4) An order under section 10 or 22(1) which adds to, replaces or omits any text in this or any other Act may be made only if a draft of the statutory instrument containing the order has been laid before, and approved by resolution of, the Scottish Parliament.

24 Crown application

This Act binds the Crown.

25 Repeals

The repeals of enactments specified in column 1 of schedule 2 have effect to the extent specified in column 2.

26 Commencement

(1) The following provisions come into force on Royal Assent-

section 2 (and the index)

sections 21 to 24

this section

section 27

(2) Other provisions come into force on the day Ministers by order appoint.

27 Short title

This Act is called the Arbitration (Scotland) Act 2008.

SCHEDULE 1

(introduced by section 6)

SCOTTISH ARBITRATION RULES

PART 1

COMMENCEMENT AND CONSTITUTION OF TRIBUNAL ETC.

Rule 1 Commencement of arbitration

An arbitration begins when a party to an arbitration agreement gives the other party notice of intention to submit a dispute to arbitration in accordance with the agreement.

Rule 2 Appointment of tribunal

2 An arbitration agreement need not appoint (or provide for appointment of) the tribunal, but if it does so provide it may-

(a) specify who is to form the tribunal,

(b) require the parties to appoint the tribunal,

(c) permit another person to appoint the tribunal, or

(d) provide for the tribunal to be appointed in any other way.

Rule 3 Eligibility to act as tribunal member

3 (1) Every individual, of whatever nationality, is eligible to act as a tribunal member provided that he or she-

(a) is aged 16 or over,

(b) is not an incapable adult (within the meaning of section 1(6) of the Adults with Incapacity (Scotland) Act 2000 (asp 4)), and

(c) does not fall within paragraph (2).

(2) An individual falls within this paragraph if-

(a) the individual is an undischarged bankrupt,

(b) a party considers the individual unsuitable to act as an arbitrator in the arbitration because of that status, and

(c) the party objects accordingly (to the other party and, if constituted, the tribunal).

"undischarged bankrupt" means an individual-

(a) whose estate has been sequestrated and who has not been discharged (or against whom a bankruptcy order has been made and is still in force),

(b) who has granted a trust deed for, or made a composition or arrangement with, creditors (and has not been discharged in respect of it),

(c) who is the subject of-

(i) a bankruptcy restrictions order, or an interim bankruptcy restrictions order, made under the Bankruptcy (Scotland) Act 1985 (c.66) or the Insolvency Act 1986 (c.45), or

(ii) a bankruptcy restrictions undertaking entered into under either of those Acts, or

(d) who has been adjudged bankrupt (and has not been discharged), or is subject to any other kind of order, arrangement or undertaking analogous to those described above, anywhere in the world.

Rule 4 Number of tribunal members

Where there is no agreement as to the number of tribunal members, the tribunal is to consist of a sole tribunal member.

Rule 5 Method of appointment

5 The tribunal is to be appointed as follows-

(a) where there is to be a sole tribunal member, the parties are to appoint an eligible individual jointly (and must do so within 28 days of either party requesting the other to do so),

(b) where there are to be two tribunal members, each party is to appoint an eligible individual (and must do so within 28 days of the other party requesting it to do so),

(c) where there are to be three or more tribunal members-

(i) each party is to appoint an eligible individual (and must do so within 28 days of the other party requesting it to do so), and

(ii) those two tribunal members are to appoint eligible individuals as the remaining tribunal members.

Rule 6 Failure of appointment procedure

6 (1) Where the tribunal is not appointed in accordance with-

(a) any appointment procedure set out in the arbitration agreement (or otherwise agreed between the parties), or

(b) rule 5,

either party may refer the matter to an arbitral appointments referee.

(2) The arbitral appointments referee may determine the matter by directing the parties to appoint such eligible individuals as the referee considers appropriate to be the tribunal (and the arbitration agreement is to have effect as if it required the parties to appoint those individuals).

(3) The arbitral appointments referee must, when determining such a reference, have regard to-

(a) the nature and subject-matter of the dispute, and

(b) the skills, qualifications, knowledge and experience which would make an individual suitable to determine such a dispute.

Rule 7 Tribunal members' duty to disclose circumstances relating to impartiality

A tribunal member must, without delay, disclose to the parties anything likely to give rise to justifiable doubts as to the member's impartiality.

In this rule, "tribunal member" includes any individual who has been asked to be a tribunal member but who has not yet been appointed.

Rule 8 Tribunal member's tenure

8 A tribunal member's tenure ends if-

(a) the member becomes ineligible to act as a tribunal member (see rule 3),

(b) the member resigns (see rule 10),

(c) the member is removed by the parties, a third party or the Outer House (see rules 9 and 12),

(d) the tribunal revokes the member's appointment (see rule 11),

(e) the Outer House dismisses the tribunal containing the member (see rule 13), or

(f) the member dies.

Rule 9 Removal of tribunal member

9 (1) A tribunal member may be removed-

(a) by the parties acting jointly, or

(b) by any third party to whom the parties have given power to remove a tribunal member.

(2) A removal is effected by notifying the tribunal member.

Rule 10 Resignation of tribunal member

10 (1) A tribunal member may resign (by giving notice of resignation to the parties and any other tribunal members) only if-

(a) the parties consent to the resignation,

(b) the member's appointment is challenged under rule 11 or 12, or

(c) the Outer House has authorised the resignation.

(2) The Outer House may authorise a resignation only if satisfied, on an application by the tribunal member, that it is reasonable for the member to resign.

(3) The Outer House may, on granting such an authorisation (or otherwise on the application of an individual who has resigned in accordance with this rule)-

(a) grant the resigned member relief from any liability incurred by virtue of acting as a tribunal member,

(b) make such order as it thinks fit about-

(i) the resigned member's entitlement (if any) to fees and expenses, or

(ii) the repayment of fees or expenses already paid to the resigned member.

(4) Where a tribunal member resigns otherwise than in accordance with this rule, the Outer House may (on the application of a party) make such order as it thinks fit about-

(a) the resigned member's liability in respect of acting as a tribunal member,

(b) the resigned member's entitlement (if any) to fees and expenses, or

(c) the repayment of fees or expenses already paid to the resigned member.

Rule 11 Challenge to appointment of tribunal member

11 (1) A party may object to the tribunal about the appointment of a tribunal member.

(2) An objection may be made only on the ground-

(a) that the appointee is not impartial (or that there are justifiable doubts about the appointee's impartiality), or

(b) that the appointee does not have a qualification which the parties agreed (before the appointment) that the appointee must have.

(3) An objection is competent only if it-

(a) states the facts on which it is based,

(b) is made within 14 days of the objector becoming aware of those facts, and

(c) is notified to the other party and the individual whose appointment is being objected to.

(4) The tribunal may deal with an objection by confirming or revoking the appointment (and it is to be treated as having confirmed the appointment if it fails to make a decision within 14 days of receiving the objection).

Rule 12 Removal of tribunal members by Outer House

12 The Outer House may remove a tribunal member if satisfied on the application by a party-

(a) that the member is not impartial (or that there are justifiable doubts about the member's impartiality),

(b) that the member is incapable of acting as an arbitrator in the arbitration (or that there are justifiable doubts about the member's ability to so act), or

(c) that the member does not have a qualification which the parties agreed (before the appointment) that the member must have.

Rule 13 Dismissal of tribunal by Outer House

13 The Outer House may dismiss the tribunal if satisfied on the application by a party that substantial injustice has been or will be caused to that party because the tribunal has refused or failed-

(a) to comply with its principal duties (see rule 17) or its duty under rule 18, or

(b) to otherwise conduct the arbitration properly.

Rule 14 Removal and dismissal by court: supplementary

14 (1) The Outer House may remove a tribunal member, or dismiss the tribunal, only if satisfied-

(a) that any recourse available under rule 11 has been exhausted, and

(b) that any available recourse to a third party who the parties have agreed is to have power to remove a tribunal member (or dismiss the tribunal) has been exhausted.

(2) The Outer House may, when removing a tribunal member or dismissing the tribunal, make such order as it thinks fit about-

(a) the tribunal member's entitlement (if any) to fees and expenses, or

(b) repaying fees or expenses already paid.

(3) The Outer House's decision under rule 12 or 13 is final.

(4) The tribunal may continue the arbitration pending the Outer House's decision under rule 12 or 13.

Rule 15 Reconstitution of tribunal

15 (1) Where a tribunal member's tenure ends, the tribunal is to be reconstituted-

(a) in accordance with the procedure used to constitute the original tribunal, or

(b) where that procedure fails, in accordance with rules 5 and 6.

(2) It is for the reconstituted tribunal to decide the extent, if any, to which previous proceedings (including any award made, appointment by or other act done by the previous tribunal) should stand.

The reconstituted tribunal's decision does not affect a party's right to object or appeal on any ground which arose before the tribunal made its decision.

Rule 16 Tribunal members nominated in arbitration agreements

16 Any provision in an arbitration agreement which nominates who is to be a tribunal member ceases to have effect when the nominated individual's tenure as a tribunal member ends (see rule 8).

PART 2

TRIBUNAL FUNCTIONS

Rule 17 Principal duties

17 (1) When conducting an arbitration, a tribunal must comply with its principal duties.

(2) Its principal duties are-

(a) to be (and appear to be) impartial as between the parties, and

(b) to treat the parties fairly.

(3) Treating the parties fairly includes giving each party a reasonable opportunity-

(a) to put its case, and

(b) to deal with the other party's case.

(4) A tribunal need not comply with any other duty imposed on it by these rules if doing so would make compliance with its principal duties impractical.

Rule 18 Further duties

18 A tribunal must do its best to conduct an arbitration-

(a) in accordance with the parties' wishes,

(b) as quickly as is reasonably practicable, and

(c) without incurring unnecessary expense.

Rule 19 Tribunal to rule on own jurisdiction

19 A tribunal may rule on-

(a) whether there is a valid arbitration agreement (or, in the case of a statutory arbitration, whether the enactment providing for arbitration applies to the dispute),

(b) whether the tribunal is properly constituted, and

(c) what matters have been submitted to arbitration in accordance with the arbitration agreement.

This is known as the tribunal ruling on its own jurisdiction.

Rule 20 Objections to a tribunal's jurisdiction

20 (1) If a party considers that the tribunal does not have jurisdiction, the party may object.

(2) An objection must be made before, or as soon as is reasonably practicable after, the matter to which the objection relates is first raised in the arbitration.

(3) The tribunal may admit a late objection if it considers the delay justified.

(4) But in any case an objection may not be made after the arbitration has ended (see rule 51).

(5) If the tribunal upholds an objection it must-

(a) end the arbitration insofar as it relates to a matter which the tribunal has ruled it does not have jurisdiction over, and

(b) set aside any interim or partial award already made insofar as the award relates to such a matter.

Rule 21 Appeal against tribunal's ruling on objection

21 (1) A party may, no later than 14 days after the tribunal's decision on an objection, appeal the decision to the Outer House.

(2) The tribunal may continue the arbitration pending determination of the appeal.

(3) The Outer House's decision on the appeal is final.

Rule 22 Tribunal decisions

22 (1) Where the tribunal is unable to make a decision unanimously (including any decision on an award), a decision made by the majority of the tribunal members is sufficient.

(2) Where there is neither unanimity nor a majority, the decision is to be made by the tribunal member who the parties have nominated to chair the tribunal.

Rule 23 Oversmen

23 (1) Where a decision cannot be made under rule 22(2) because no person has been nominated, the decision is to be made by a third party (an "oversman") appointed-

(a) by the tribunal, or

(b) where the tribunal fails to make an appointment within 28 days of being requested to do so by either party or any tribunal member, by an arbitral appointments referee (at the request of a party or tribunal member).

(2) The following rules apply in relation to oversmen as they apply in relation to tribunal members or, as the case may be, tribunals-

rule 3

rule 7

rules 11 to 14

rules 17 and 18

rule 55

rules 62

rule 63

rules 67 and 68

PART 3

PARTIES' DUTIES

Rule 24 Duties relating to conduct of arbitration

24 (1) A party must do its best to ensure that the arbitration is conducted-

(a) as quickly as is reasonably practicable, and

(b) without incurring unnecessary expense.

(2) Accordingly, a party must comply with any determination, direction, order or other requirement of the tribunal without unnecessary delay.

Rule 25 Powers relating to default by a party

25 (1) This rule applies where a party fails to-

(a) comply with rule 24(2),

(b) attend a hearing or a meeting which the tribunal requires the party to attend,

(c) produce evidence requested by the tribunal, or

(d) comply with a term of the arbitration agreement relating to the conduct of the arbitration.

(2) The tribunal may proceed with the arbitration on the basis of the evidence (if any) before it unless-

(a) the tribunal considers the party to have a reasonable excuse for the failure, or

(b) the parties agree that the tribunal should not proceed in that manner.

PART 4

ARBITRAL PROCEEDINGS

Rule 26 Procedure and evidence

26 Insofar as not determined by these rules, it is for a tribunal to determine-

(a) the procedure to be followed in an arbitration, and

(b) the admissibility, relevance, materiality and weight of any evidence.

Rule 27 Place of tribunal meetings

27 A tribunal may meet anywhere it chooses (in or outwith Scotland).

Rule 28 Power to appoint clerk etc.

28 A tribunal may appoint a clerk (and such other agents or employees as it thinks fit) to assist it in conducting the arbitration.

But the parties' consent is required for any appointment in respect of which significant costs are likely to arise.

Rule 29 Statements of claim and defence

29 It is for a tribunal to determine-

(a) whether a party must submit a written statement of the party's claim or defence,

(b) the form and content of any such statement,

(c) the extent to which any such statement may be amended, and

(d) the time limit for the submission of any such statement or amendment.

Rule 30 Failure to submit claim or defence timeously

30 (1) Paragraphs (2) and (3) apply where a party fails to submit its statement of claim or defence to the tribunal before the expiry of the time limit for such submission.

(2) If the tribunal considers that there is a good reason for the failure, it must specify a new time limit for the submission of the statement.

(3) In the absence of such a reason, the tribunal must-

(a) in the case of failure to submit a statement of claim, end the arbitration insofar as it relates to the subject-matter of claim, and

(b) in the case of failure to submit a statement of defence, proceed with the arbitration (but the failure is not, in itself, to be treated as an admission of anything).

(4) Where a party unnecessarily delays in submitting its statement of claim or defence to the tribunal (and there is no time limit for that submission), the tribunal must-

(a) in the case of a delay in submitting a statement of claim, end the arbitration in so far as it relates to the subject-matter of the claim, and

(b) in the case of a delay in submitting a statement of defence, proceed with the arbitration (but the delay is not, in itself, to be treated as an admission of anything).

Rule 31 Hearings and examinations

31 (1) It is for a tribunal to determine the extent to which an arbitration is to proceed by way of-

(a) hearings for the presentation of evidence or for oral argument, or

(b) the submission of documents or other materials.

(2) A tribunal must hold a hearing if requested to do so by a party.

(3) A tribunal may require the parties to attend a meeting to inspect any document, goods or other property.

(4) The tribunal must give the parties at least 14 days' notice of any hearing or meeting.

(5) A tribunal may direct that a party or witness is to be examined on oath or affirmation.

The tribunal may administer an oath or affirmation for that purpose.

Rule 32 Use of experts

32 (1) A tribunal may obtain the opinion of an expert on any matter arising in the arbitration.

(2) If the opinion is given in writing-

(a) the tribunal must send a copy of it to the parties as soon as is reasonably practicable, and

(b) the parties must be given at least 14 days from the date the opinion is sent to make representations.

(3) If the opinion is to be given in person, it must be given at a hearing (see rule 31) at which the parties may ask the expert questions.

(4) Any agreement between the parties to disapply this rule (or any part of it) has no effect if entered into after the arbitration begins.

Rule 33 Powers relating to property

33 (1) A tribunal may direct a party to allow the tribunal, an expert or another party-

(a) to inspect, photograph, preserve or take custody of any relevant property, or

(b) to take samples from, or conduct an experiment on any relevant property.

"relevant property" means any property which a party owns or possesses-

(a) which is the subject of the arbitration, or

(b) as to which any question arises in the arbitration.

(2) A tribunal may direct a party to preserve any evidence which the party possesses or controls.

Rule 34 Duty to give copies of documents

34 If a party discloses a document to the tribunal, the party must give a copy of the information contained in the document to the other party.

"document" includes-

(a) a map, plan, graph or drawing,

(b) a photograph, and

(c) any disc, tape or other thing in which images, sounds or other data are recorded.

Rule 35 Representation of parties

35 A party may be represented in the arbitration by any lawyer or other person.

Rule 36 Variation of time limits

36 (1) A tribunal may, on its own initiative or on the application of a party, vary any time limit relating to the arbitration if it considers it appropriate to do so.

(2) The sheriff may, on the application of the tribunal or a party, vary such a time limit if satisfied that-

(a) someone would suffer a substantial injustice if no variation was made, and

(b) any available arbitral process for varying the time limit has been exhausted.

(3) If the sheriff varies a time limit, it is for the sheriff to determine the extent of the variation.

Rule 37 Consolidation of proceedings

37 Parties may agree to-

(a) consolidate the arbitration with another arbitration, or

(b) to hold concurrent hearings.

But the tribunal may not order such consolidation, or the holding of concurrent hearings, on its own initiative.

Rule 38 Suspension of legal proceedings

38 (1) The court must, on an application by a party to an arbitration agreement, sist legal proceedings on a dispute if the arbitration agreement provides that the dispute is to be resolved by arbitration (immediately or after the exhaustion of other dispute resolution procedures).

But the court need not sist the legal proceedings if satisfied that the arbitration agreement concerned is void, inoperative or incapable of being performed.

(2) An application to sist legal proceedings is valid only if the applicant-

(a) has given notice of the application to the parties to the legal proceedings,

(b) has taken any appropriate procedural step to acknowledge those proceedings, and

(c) has not taken any step in those proceedings to answer the substantive claim.

(3) Any provision in an arbitration agreement which prevents the bringing of the legal proceedings is void in relation to any proceedings which the court refuses to sist.

Rule 39 Court's powers in relation to arbitration

39 (1) The court may, on an application by the tribunal or a party, order a person to-

(a) attend a hearing or meeting for the purposes of giving evidence to the tribunal, or

(b) disclose documents or other material evidence to the tribunal.

But the court may not order a person to give any evidence, or to disclose anything, which the person would be entitled to refuse to give or disclose in civil proceedings.

(2) The court has the same power in relation to an arbitration as it has in relation to civil proceedings to-

(a) make an order under section 1 of the Administration of Justice (Scotland) Act 1972 (c.59),

(b) order the sale of any property in dispute in the arbitration,

(c) make an order securing any amount in dispute in the arbitration,

(d) grant warrant for arrestment or inhibition,

(e) grant interdict (or interim interdict), or

(f) grant any other interim or permanent order.

But the court may take such action only-

(a) on the application of a party, and

(b) if the arbitration has begun, with the consent of the tribunal.

(3) This rule applies in relation to-

(a) ongoing arbitrations, and

(b) arbitrations which are likely to begin.

(4) This rule does not affect-

(a) any other powers which the court has under any enactment or rule of law in relation to arbitrations, or

(b) the tribunal's powers.

PART 5

AWARDS

Rule 40 Rules applicable to the substance of the dispute

40 (1) The tribunal is to decide the dispute in accordance with the law applicable to the substance of the dispute and, when doing so, must have regard to-

(a) the provisions of any contract relating to the substance of the dispute,

(b) the normal commercial or trade usage of any undefined terms in the provisions of any such contract, and

(c) any established commercial or trade customs or practices relevant to the substance of the dispute.

(2) It is for the tribunal to determine the law which is applicable to the substance of the dispute.

(3) The tribunal may not decide the dispute on the basis of general considerations of justice, fairness or equity unless they form part of the law applicable to the substance of the dispute.

Rule 41 Form of award

41 A tribunal's award must-

(a) be signed by at least the majority of the tribunal members (and state why any tribunal member has not signed),

(b) state where the arbitration is seated,

(c) state the date on which the award takes effect (see rule 43),

(d) contain details of any previous partial or interim award,

(e) specify the extent to which any previous interim award is superseded, and

(f) be sent to the parties as soon as is reasonably practicable.

Rule 42 Award to contain statement of reasons

42 A tribunal's award must state the reasons for the award.

Rule 43 Day award takes effect

43 An award takes effect on the day it is made (see rule 70(5)).

Rule 44 Power to make interim awards

44 (1) A tribunal may make an interim award granting any relief on a temporary basis which it has the power to grant permanently.

(2) For example, an interim award may order a party to-

(a) pay a sum of money to another party,

(b) transfer property to another party, or

(c) make an interim payment on account of the arbitration expenses.

Rule 45 Power to make partial awards

45 (1) A tribunal may make more than one award at different times during the arbitration.

(2) An award which deals with some (but not all) of the matters which the tribunal is to decide in the arbitration is to be known as a "partial award".

Rule 46 Power to produce draft awards

46 Before making an award, a tribunal may-

(a) send a draft of its proposed award to the parties, and

(b) consider any representations from the parties about the draft.

Rule 47 General powers in relation to awards

47 (1) An award may order the payment of a sum of money (including a sum in respect of damages).

The award may specify the sum in any currency.

(2) An award requiring payment of a sum of money may specify that interest is to be paid on that sum.

The award may, in particular, specify-

(a) the rate of interest,

(b) the manner in which interest is to be calculated (for example: whether it is simple or compound interest),

(c) the period for which interest is payable (including any rests if the tribunal considers that appropriate).

(3) An award may-

(a) be of a declaratory nature,

(b) rectify the terms of a contract to the extent permitted by the law applicable to the contract,

(c) order a party to do or refrain from doing something (including ordering the performance of a contractual obligation),

(d) order the reduction of a deed or other document.

But an award may not order anything which a court would be unable to order in the circumstances.

Rule 48 Power to withhold award on non-payment of fees or expenses

48 (1) A tribunal may refuse to make an award if-

(a) the fees and expenses of the tribunal members (see rule 62), or

(b) any expenses reasonably incurred by the tribunal when conducting the arbitration,

have not been paid in full

(2) Where a tribunal so refuses, the court may (on the application of a party) order-

(a) the tribunal to make the award on the applicant paying into the court an amount equal to the fees and expenses demanded (or such lesser amount as may be specified in the order),

(b) the amount paid into the court to be used to pay the fees and expenses which the court determines as being properly payable, and

(c) the balance (if any) of the amount paid into the court to be repaid to the applicant.

(3) The court may make such an order only if the applicant has exhausted any available arbitral process of appeal or review.

(4) The court's decision may be appealed only with the leave of the court.

Rule 49 Award to be final and binding on parties

49 (1) An award is final and binding on the parties and on any person claiming through or under them.

(2) But an interim award is binding only-

(a) to the extent specified in the award, or

(b) until it is superseded by a subsequent award.

(3) This does not affect the right of any person to challenge the award-

(a) under Part 6 of these rules, or

(b) by any available arbitral process of appeal or review.

Rule 50 Award treated as made in Scotland

50 An award is to be treated as having been made in Scotland even if it is signed outwith Scotland.

Rule 51 Arbitration to end on last award or early settlement

51 (1) An arbitration ends when the last award to be made in the arbitration takes effect.

This does not prevent the tribunal from ending the arbitration before then under rule 20(5) or 30(3) or (4).

(2) The parties may end the arbitration at any time by notifying the tribunal that they have settled the dispute.

(3) On the request of the parties, the tribunal may make an award reflecting the terms of the settlement.

These rules (except for rule 42) apply to such an award as they apply to any other award.

(4) The tribunal's functions expire when the arbitration ends (except for its functions under rules 53, 57(7), 59(2), 60 and 62(2)).

Rule 52 Enforcement of award

52 (1) The court may, on the application of a party, order that an award is to be enforced as if it were an extract registered decree bearing a warrant for execution granted by the sheriff.

(2) No such order may be made if the court is satisfied that the tribunal which made the award lacked jurisdiction to do so (and the court may restrict the extent of the order if satisfied that the tribunal lacked jurisdiction to make a part of the award).

(3) But a party may not object on the ground that the tribunal lacked jurisdiction if the party has lost the right to raise that objection by virtue of-

(a) the arbitration agreement, or

(b) rule 67.

(4) An award may be registered for execution in the Books of Council and Session or the sheriff court books.

(5) This rule does not apply in relation to New York Convention awards (see section 12 of this Act).

Rule 53 Correcting an award

53 (1) A party may, no later than 30 days after an award takes effect, apply to the tribunal for the award to be corrected so as to-

(a) correct a clerical or typographical error in the award,

(b) correct an error arising by accident or omission, or

(c) clarify or remove any ambiguity in the award.

(2) The party must, at the same time as the application is made, send a copy of it to the other party.

(3) The other party may, no later than 15 days after receiving a copy of the application, make written representations to the tribunal about the application.

(4) The tribunal may, no later than 60 days and no earlier than 30 days after the application is made, correct the award to the extent it considers necessary having regard to the application and any representations.

(5) The tribunal may, on its own initiative and no later than 30 days after an award takes effect, correct a clerical or typographical error in the award.

(6) The sheriff may, on the application of a party, make an order varying the time limit for making an application under this rule.

(7) A corrected award is to be treated as if it was made in its corrected form on the day the award took effect.

PART 6

CHALLENGING AWARDS

Rule 54 Challenging the award: substantive jurisdiction

54 (1) An award may be appealed to the Outer House by a party on the ground that the tribunal did not have jurisdiction to make the award (a "jurisdictional appeal").

(2) The Outer House may decide a jurisdictional appeal by-

(a) confirming the award,

(b) varying the award (or part of it), or

(c) setting aside the award (or part of it).

(3) Any variation by the Outer House has effect as part of the tribunal's award.

Rule 55 Challenging the award: serious irregularity

55 (1) An award may be appealed to the Outer House by a party on the ground of serious irregularity (an "irregularity appeal").

(2) "Serious irregularity" means an irregularity which has caused, or will cause, substantial injustice to the appellant.

(3) An "irregularity" may, for example, include-

(a) a refusal or failure by the tribunal-

(i) to comply with its principal duties (see rule 17) or its duty under rule 18,

(ii) to deal with any issues put to it,

(iii) to comply with the requirements as to the form of the award, or

(iv) to otherwise conduct the arbitration properly,

(b) the tribunal or any third party to whom the parties give powers in relation to the arbitration acting outwith powers,

(c) the award being-

(i) contrary to public policy, or

(ii) obtained by fraud or in a way which is contrary to public policy,

(d) a tribunal member having not been impartial (or there being justifiable doubts about a tribunal member's impartiality),

(e) a tribunal member having been incapable of acting as an arbitrator in the arbitration (or there being justifiable doubts about a tribunal member's ability to so act), or

(f) a tribunal member not having a qualification which the parties agreed (before the appointment) that the member must have, or

(g) any other irregularity committed by the tribunal or any third party to whom the parties give powers in relation to the arbitration.

(4) The Outer House may decide an irregularity appeal by-

(a) confirming the award,

(b) requiring the tribunal to reconsider the award (or part of it), or

(c) if it considers reconsideration inappropriate, setting aside the award (or part of it).

Rule 56 Challenging the award: legal error

56 (1) An award may be appealed to the Outer House by a party on the ground that the tribunal erred on a point of law (a "legal error appeal").

(2) An application for a legal error appeal is valid only if it-

(a) identifies the point of law concerned, and

(b) states why the applicant considers that the appeal should proceed.

(3) A legal error appeal may proceed only if the Outer House is satisfied-

(a) that deciding the point will substantially affect a party's rights,

(b) that the tribunal was asked to decide the point,

(c) that the tribunal's decision on the point-

(i) was obviously wrong, or

(ii) where the court considers the point to be of general importance, is open to serious doubt, and

(d) that it is just and proper for the court to decide the point despite the parties' agreement to resolve the dispute by arbitration.

(4) It is for the Outer House to decide whether a hearing is needed for the purposes of deciding whether a legal error appeal should proceed.

(5) The Outer House may decide a legal error appeal which proceeds by-

(a) confirming the award,

(b) requiring the tribunal to reconsider the award (or part of it), or

(c) if it considers reconsideration inappropriate, setting aside the award (or part of it).

Rule 57 Challenging the award: supplementary

57 (1) This rule (and rules 58 and 59) apply to jurisdictional appeals, irregularity appeals and legal error appeals (and references to "appeal" are to be construed accordingly).

(2) An appeal is competent only if the appellant has exhausted-

(a) any available arbitral process of appeal or review, and

(b) any recourse available under rule 53 (corrections).

(3) No appeal may be made against an interim award.

(4) An appeal must be made within 28 days of-

(a) the date on which the award being challenged takes effect,

(b) if the award is corrected (or an application for correction is refused), the date of the correction or refusal,

(c) if there has been an arbitral process of appeal or review, the date on which the appellant was notified of the result of that process.

(5) An appellant must give notice of an appeal to the other party and the tribunal.

(6) The tribunal may continue the arbitration pending determination of an appeal.

(7) The Outer House may-

(a) order the tribunal to state its reasons for the award being appealed in sufficient detail to enable the Outer House to deal with the appeal properly, and

(b) make any other order it thinks fit with respect to any additional costs arising from that order.

(8) The Outer House, when deciding an appeal by setting aside the award (or any part of it), may also order that any provision in an arbitration agreement which prevents the bringing of the legal proceedings in relation to the subject-matter of the award (or that part of it) is void.

(9) The identities of the parties to an appeal must not be disclosed-

(a) by the Outer House, or

(b) in any report of the Outer House's decision.

Any disclosure in such a report is to be treated as a breach of an obligation of confidence.

Rule 58 Appeal costs

58 (1) The Outer House may require any amount due under an award being appealed (or any associated interim award) to be paid into court or otherwise secured pending its decision on the appeal.

(2) The Outer House may require the appellant to provide security for the costs of the appeal.

But such a requirement may not be made only because the appellant-

(a) is an individual who ordinarily resides outwith the United Kingdom, or

(b) is a body which is-

(i) incorporated or formed under the law of a country outwith the United Kingdom, or

(ii) managed or controlled from outwith the United Kingdom.

(3) The Outer House may dismiss an appeal if a requirement made under this rule is not complied with.

Rule 59 Effect of Outer House's decision on appeal

59 (1) The Outer House's decision on an appeal is final (as is any decision on whether to proceed with a legal error appeal).

(2) Where the Outer House requires the tribunal to reconsider its award (or any part of it), the tribunal must make a new award in respect of the matter concerned by no later than-

(a) the day falling 3 months after the Outer House makes the requirement, or

(b) such other day as the Outer House may direct.

These rules apply in relation to the new award as they apply in relation to the appealed award.

PART 7

EXPENSES

Rule 60 Arbitration expenses

60 (1) It is for the tribunal to-

(a) determine and fix the amount of the arbitration expenses (other than those agreed or fixed under rule 62), or

(b) arrange for those expenses to be taxed by the auditor of court.

(2) The tribunal may make an award allocating the parties' liability for the arbitration expenses (and, when doing so, must have regard to the principle that expenses should follow a decision made in favour of a party unless that is not appropriate in the circumstances).

(3) Such an award may cap a party's liability for the arbitration expenses at an amount specified in the award.

But an award imposing such a cap must be made sufficiently in advance of the arbitration expenses to which the cap relates being incurred, or the taking of any steps in the arbitration which may be affected by the cap, for the parties to take account of it.

(4) An award under this rule may be made together with or separately from the tribunal's award on the substance of the dispute (and these rules apply in relation to an award under this rule as they apply to an award on the substance of the dispute).

(5) "Arbitration expenses" means-

(a) the fees and expenses of the tribunal members (see rule 62),

(b) any expenses reasonably incurred by the tribunal when conducting the arbitration, including-

(i) fees and expenses of any oversman,

(ii) fees and expenses of any clerk, agents or employees appointed by the tribunal,

(iii) fees and expenses of any expert used by the tribunal (see rule 32),

(iv) reasonable expenses in respect of meeting and hearing facilities,

(c) the legal and other expenses of the parties, and

(d) the fees and expenses of any third party to whom the parties give powers in relation to the arbitration.

(6) Any agreement between the parties to disapply this rule (or any part of it) has no effect if entered into after the arbitration begins.

Rule 61 Security for expenses

61 A tribunal may order a party making a claim to provide security for the arbitration expenses or any part of those expenses.

But such an order may not be made only because the party-

(a) is an individual who ordinarily resides outwith the United Kingdom, or

(b) is a body which is-

(i) incorporated or formed under the law of a country outwith the United Kingdom, or

(ii) managed or controlled from outwith the United Kingdom.

Rule 62 Fees and expenses of tribunal members

62 (1) The parties are severally liable to pay to tribunal members-

(a) a fee for conducting the arbitration, and

(b) any expenses the tribunal members incur in relation to the arbitration,

but, as between themselves, are liable for those fees and expenses in the proportions which they agree (or, failing such agreement, in the proportions determined by the tribunal in an award under rule 60(2)).

(2) The amount of fees and expenses so payable and the payment terms are-

(a) to be agreed by the parties and the tribunal members, or

(b) failing such agreement, to be fixed by the auditor of court (on the application of the tribunal or a party) on the basis of a reasonable commercial rate of charge.

(3) The auditor of court may, when fixing the amount of fees and expenses, order the repayment of any fees or expenses already paid which the auditor considers excessive.

Such an order has effect as if it was made by the sheriff.

(4) This rule does not affect the Outer House's power to make an order under rules 10 or 14 (orders relating expenses in cases of resignation or removal).

PART 8

MISCELLANEOUS

Rule 63 Immunity of tribunal etc.

63 (1) Neither the tribunal nor any tribunal member is liable for anything done or omitted in the performance, or purported performance, of the tribunal's functions.

(2) This rule does not apply-

(a) if the act or omission is shown to have been in bad faith, or

(b) to any liability arising from the resignation of a tribunal member.

(3) This rule applies to any clerk, agent or employee of the tribunal as it applies to the tribunal.

Rule 64 Immunity of appointing arbitral institution etc.

64 (1) A third party who the parties ask to appoint or nominate a tribunal member is not liable for anything done or omitted in the performance, or purported performance, of that function (unless the act or omission is shown to have been in bad faith).

(2) Such a third party is not liable for the acts or omissions of-

(a) any tribunal member who it nominates or appoints, or

(b) the tribunal of which such a tribunal member forms part (or any clerk, agent or employee of that tribunal).

(3) This rule applies to a third party's agents and employees as it applies to a third party.

Rule 65 Immunity of experts, witnesses and legal representatives

65 Every person who participates in an arbitration as an expert, witness or legal representative is to enjoy the same immunity in respect of acts or omissions as the person would enjoy if the arbitration were civil proceedings.

Rule 66 Raising the question of the tribunal's jurisdiction with the court

66 A party may not raise the question of the tribunal's jurisdiction with the court other than-

(a) by an appeal under rule 21 or 54, or

(b) in objecting to an order being made under rule 52.

Rule 67 Loss of right to object

67 (1) A party who participates in an arbitration without making a timeous objection on any of the below grounds may not raise the objection later-

(a) before the tribunal or on appeal to the Outer House, or

(b) for the purposes of rule 3(1)(c).

This rule does not apply where the party shows that it did not object timeously because it-

(a) did not know of the ground for objection, and

(b) could not with reasonable diligence have discovered that ground.

(2) The grounds are-

(a) that the tribunal member is ineligible to act as a tribunal member,

(b) that a tribunal member is not impartial (or that there are justifiable doubts about a tribunal member's impartiality),

(c) that the tribunal does not have jurisdiction,

(d) that the arbitration has been conducted improperly,

(e) that there has been a failure to comply with the arbitration agreement or the rules, and

(f) that the arbitration has been affected by any other irregularity.

(3) An objection is timeous if it is made-

(a) as soon as reasonably practicable after the circumstances giving rise to the ground for objection first arose, or

(b) by such later date as may be allowed by the arbitration agreement, the arbitration rules or the tribunal.

(4) This rule does not allow a party to raise an objection which it is barred from raising for any reason other than failure to object timeously.

Rule 68 Consideration where tribunal member adjudged not to be impartial

68 (1) This rule applies where-

(a) a tribunal member is removed by the Outer House under rule 12 on the ground that the member is not impartial (or that there are justifiable doubts about the member's impartiality),

(b) a tribunal is dismissed by the Outer House under rule 13 on the ground that it has failed to comply with its duty to be (and appear to be) impartial as between the parties, or

(c) a tribunal's award (or any part of it) is returned to the tribunal for reconsideration or set aside on either of those grounds (see rule 55).

(2) Where this rule applies, the Outer House must have particular regard to whether a tribunal member has complied with rule 7 when it is considering whether to make an order about-

(a) the tribunal member's entitlement (if any) to fees or expenses,

(b) repaying fees or expenses already paid.

Rule 69 Death of party

69 An arbitration agreement is not discharged by the death of a party and may be enforced by or against the executor or other representative of that party.

This rule does not affect the operation of any law by virtue of which a substantive right or obligation is extinguished by death.

Rule 70 Formal communications

70 (1) A "formal communication" means any application, award, consent, designation, direction, notice, objection, order, request or requirement made or given or any document served-

(a) in pursuance of an arbitration agreement,

(b) for the purposes of these rules, or

(c) otherwise in relation to an arbitration.

(2) A formal communication must be in writing.

(3) A formal communication is made, given or served if it is-

(a) hand delivered to the person concerned,

(b) sent to the person concerned by first class post in a properly addressed envelope or package-

(i) in the case of an individual, to the individual's principal place of business or usual or last known abode,

(ii) in the case of a body corporate, to the body's registered or principal office, or

(iii) in either case, to any postal address designated for the purpose by the intended recipient (such designation to be made by giving notice to the person giving or serving the formal communication), or

(c) sent to the person concerned in some other way (including by email, fax or other electronic means) which the sender reasonably considers likely to cause it to be delivered on the same or next day.

(4) A formal communication which is sent by email, fax or other electronic means is to be treated as being in writing only if it is legible and capable of being used for subsequent reference.

(5) A formal communication is, unless the contrary is proved, to be treated as having been made, given or served-

(a) where hand delivered, on the day of delivery,

(b) where posted, on the day on which it would be delivered in the ordinary course of post, or

(c) where given in any other way described in rule 70(3)(c), on the day after it is sent.

(6) The tribunal may determine that a formal communication-

(a) is to be delivered in such manner as it may direct, or

(b) need not be delivered.

But it may do so only if satisfied that it is not reasonably practicable for the formal communication to be made, given or served in accordance with these rules (or, as the case may be, with any contrary agreement between the parties).

(7) This rule does not apply in relation to any application, order, notice, document or other thing which is made, given or served in or for the purposes of legal proceedings.

Rule 71 Periods of time

71 Periods of time are to be calculated for the purposes of an arbitration as follows-

(a) where any act requires to be done within a specified period after or from a specified date, the period begins immediately after that date, and

(b) where the period is a period of 7 days or less, the following days are to be ignored-

(i) Saturdays and Sundays, and

(ii) any public holidays in the place where the act concerned is to be done.

SCHEDULE 2

(introduced by section 25)

REPEALS

INDEX

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