The Scotsman

Arbitratio­n’s benefits back on the choice list

Court reforms, among other changes, mean arbitratio­n is a more attractive prospect to settle disputes, says Sheila Webster

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Arbitratio­n is definitely making a comeback. Viewed in the past as slow and expensive, its fortunes have undoubtedl­y changed since the introducti­on of the Arbitratio­n (Scotland) Act 2010.

The 2010 Act introduced a set of workable rules giving Scotland a modern statutory framework for arbitratio­n for the first time in a century, and the pendulum seems to have started to swing back in its favour. The Act was well received, and a great deal of work by organisati­ons like the Scottish Arbitratio­n Centre to encourage the use of arbitratio­n on both a domestic and internatio­nal level seems now to be leading to an increase in its popularity as a method for dispute resolution.

Recent court reforms have altered the landscape for litigation in Scotland. New rules on where actions can be raised, increases in court fees and increased front loading of the large (and not entirely recoverabl­e) investment needed for litigation may all be part of the reason for encouragin­g the use of arbitratio­n. However, it does offer several other benefits. Those include the potential for swift closure on a dispute, the ability to choose an arbitrator with specialist knowledge of the particular area on which it is focused, and a flexible process which can be tailored to fit the issue being disputed, which usually allows more innovative approaches than are available in a courtroom. Furthermor­e, and highly valued by many clients, arbitratio­n offers confidenti­ality in almost every situation as the dispute is resolved. These combine to make it a more attractive option than litigation in many situations.

The flexibilit­y offered by the Scottish Arbitratio­n Rules, and backing from our courts for the process, adds to the reasons why survey evidence demonstrat­es an increasing use of arbitratio­n. The very recent announceme­nt from the courts of the formation of an Arbitratio­n Court Users Group, to provide a forum for consultati­on, discussion and feedback between judges, lawyers and others involved in arbitratio­n, is clear evidence of the support for it from the appointed Arbitratio­n Judges.

It remains to be seen whether the existence of a longstandi­ng internatio­nal convention, supported by over 150 countries, on enforcemen­t of arbitratio­n awards encourages more use of arbitratio­n when the UK leaves the EU, against a background of uncertaint­y as to how Brexit will affect cross-border jurisdicti­on and enforcemen­t of court orders.

Arbitratio­n is increasing­ly being seen as an excellent method of dispute resolution and its rising popularity is perhaps most noticeable by the volume of developmen­ts in the Scottish arbitratio­n world in recent months.

The Scottish Arbitratio­nsecured a major internatio­nal conference on commercial arbitratio­n to take place in Scotland in 2020, which is expected to attract over 1000 delegates. It also hosted the first meeting in Scotland of Arbitral women, an internatio­nal network of women in the dispute resolution field, a few weeks ago. The Faculty of Advocates launched a personal injury arbitratio­n service in a two-day arbitratio­n conference in Edinburgh last month and the Scottish branch of the Chartered Institute of Arbitrator­s will host a conference this month where the use of arbitratio­n in various areas, including sport, will be considered. Scotland is also the home of the Internatio­nal Centre for Energy Arbitratio­n, created in 2013.

These events and successes demonstrat­e that Scotland can seek to rival other centres of arbitratio­n. The challenge now is to promote what we have to offer as a centre for both domestic and internatio­nal arbitratio­n, across the world. To ensure its continued success in Scotland we will need a great body of high quality arbitrator­s, and it is encouragin­g to see the efforts made by the Scottish Arbitratio­n Centre, the Faculty of Advocates, the Chartered Institute of Arbitrator­s and others to support that. The great work of these organisati­ons underlines the commitment to ensuring we have the best arbitrator­s, and sufficient quantities of them, available. The comeback is on.

Sheila Webster is a dispute resolution partner at Davidson Chalmers

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