SCOTLAND AND THE UNCITRAL MODEL LAW A framework for International Arbitrations In Scotland The United Nations Commission on International Trade (UNCITRAL) Model Law on International Commercial Arbitration has applied in Scotland since 1990. It was enacted in Scotland by section 66 and Schedule 7 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. All international Arbitrations conducted in Scotland are governed by the Model Law. This short paper sets out some of the main points concerning the implementation of the Model Law in Scotland. Arbitration is international if one party has its place of business outside Scotland, or the place of performance or the subject matter of a dispute is outside Scotland. Parties to a domestic Arbitration can expressly agree that the Model Law is to apply. The Model Law sets out the provisions, procedures and rules for the conduct of Arbitration. If parties wish to refer a dispute to Arbitration, the agreement to arbitrate must be in writing. If there is a valid arbitration agreement a court must, if timeously required, refer the dispute to arbitration. Courts are expressly prohibited from intervening in arbitration except where Model Law provides. (Articles 5, 6, 8, 9 and 29 of the Model Law). In Scotland the Court of Session and the Sheriff Court may so act. Arbitrators must be independent and impartial. The duty of an Arbitrator is to disclose any
circumstances that may cast doubt on this, before any appointment and during arbitration. Parities have the right to challenge on these grounds an arbitral tribunal with right of appeal to court. Tribunal may rule on its own jurisdiction with in some cases right to appeal to court. Thus, it is possible to conduct Arbitration in Scotland under the Law applicable to the matter in dispute. The overriding principle is that the arbitral tribunal treat each party with equality and give each a full opportunity to present its case. Subject to this and any agreement made by parties, the Tribunal may conduct arbitration as it thinks appropriate, but must hold oral hearing if a party requires it. A Tribunal can be made up of one or more Arbitrators. When the Tribunal is composed of three or more Arbitrators, decisions can be made by the majority. The award must be in writing, signed by at least the majority, give reasons, and state its date and the place of arbitration. A limited period for correction is allowed. Once final, the award can only be set aside by a court on very limited grounds – invalidity of arbitration agreement, failure to allow party to present its case, lack of jurisdiction by tribunal or failure to adhere to agreed procedure. Application to set aside must be made within 3 months of the award.
The Model Law has now been adopted in some 38 states. State for the purposes of the Model Law includes Scotland. In Scotland it differs from the standard in very few respects: (1) (2) (3) Parties may expressly agree to opt in to Model Law; Unless parties agree otherwise there will be a single arbitrator; An award procured by fraud, bribery, or corruption may be set aside without limit of time.
One feature of an Award under the Model Law is that when parties to a dispute are resident in a country that is a signatory to the UNCITRAL agreement, they can apply to the Courts in that country for enforcement of the Award. References:- UNCITRAL Web Site http://www.uncitral.org/en-index.htm The following has been taken from the UNCITRAL Web Site dated 1 September 2001 The Model Law Legislation based on the UNCITRAL Model Law on International Commercial Arbitration has been enacted in A B C E G H I K L M N O P R S T U Australia Bahrain, Belarus, Bermuda, Bulgaria Canada, Cyprus Egypt Germany, Greece, Guatemala Hong Kong Special Administrative Region of China, Hungary India, Iran (Islamic Republic of), Ireland Kenya Lithuania Macau Special Administrative Region of China, Madagascar, Malta, Mexico New Zealand, Nigeria Oman Peru Republic of Korea, Russian Federation Singapore, Sri Lanka Tunisia Ukraine within the United Kingdom of Great Britain and Northern Ireland: Scotland within the United States of America: California, Connecticut, Oregon and Texas Z Zimbabwe