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BUSINESS CONTINUITY FOR LITIGATORS while the courts are closed. Forgive the element of self-promotion in this thread, but there is an alternative that needs to be highlighted and considered. Many litigators know little about how arbitration works, so here is a thread (1/10)
Arbitration has had a reputation for being prolonged and expensive but, where the parties *jointly* agree to appoint an arbitrator, they can agree cost limits and timescale with the arbitrator at the time of appointment (2/10)
All that is needed to start the process is a one paragraph agreement between the parties, identifying the dispute and appointing the arbitrator. If the case is already in court, reference to the existing Record may be enough to identify the scope of the dispute (3/10)
If the case is not already in court, a summary of the dispute has to be included. The existing papers are sent to the arbitrator electronically and a video case conference is fixed (4/10)
At the case conference the issues are identified and further procedure is discussed. The arbitrator issues a Directions Notice setting out the timescale for any further pleadings, exchange of documents and witness statements and a date for a hearing (5/10)
If it is necessary to hear evidence and oral submissions, this will be carried out by video conference. Thereafter the arbitrator will issue a written decision and legally binding decree (“the award”). This can be registered for execution in Books of Council and Session (6/10)
The arbitrator will also make an award of costs in the same manner as a court. Recoverable costs are not restricted by any table of fees but only by the concept of reasonableness (7/10)
The default rules under which a Scottish arbitration proceeds are set out in Schedule 1 of the Arbitration (Sc) Act 2010. They are very straightforward and can be found here - http://www.legislation.gov.uk/asp/2010/1/contents">https://www.legislation.gov.uk/asp/2010/... (8/10)
There is always a right of appeal on the ground that the arbitrator exceeded his or her jurisdiction or where a serious procedural irregularity has occurred. The right of appeal based on error of law is found in rules 69 and 70 (9/10)
Before appointing an arbitrator, ask for their judicial competencies CV and examples of decisions they have issued. If you would like mine, or have questions, please call me or email. I am happy to help. (Other legally qualified arbitrators are available.) (End)
