Faculty urges ministers to remove ‘blot’ from Scottish arbitration law

The Faculty said that a section of the Arbitration (Scotland) Act 2010, dealing with statutory arbitrations, has still to come into effect.

It means that “the wholly inadequate and defective old law” continues to apply in such arbitrations.

The Faculty called on the Scottish government to bring the section into force.

“The continuing applicability of the old law for statutory arbitrations is a blot on the landscape of Scottish arbitration law,” it said.

Ministers are planning to remove, from the start of next year, a provision of the 2010 Act which allows parties to agree that the act will not apply to an arbitration agreement made prior to 7 June, 2010.

In its response to a consultation, the Faculty agreed with the proposal, stating: “We are unaware of any parties agreeing to opt into the old law…Given this and the obvious benefits of the 2010 Act, there is no reason to continue with the ‘opt-in’ provisions in section 36(3).”

However, the Faculty continued: “Regrettably, the making of the Order will NOT repeal all old arbitration law. The wholly inadequate and defective old law will continue to be in force in relation to statutory arbitrations for which there are many provisions on the statute book. Many are important provisions such as arbitration of compensation claims arising out of the activities of statutory public bodies.

“Section 16 of the 2010 Act which is designed to apply the Act to statutory arbitrations remains to be brought into force more than 6 years after the rest of the Act.

“There is no reason why section 16 cannot be brought into force at the same time as the Order…The Faculty urges the Scottish Government to bring section 16 into force and achieve the full repeal of old arbitration law by 1 January, 2017.”