Part 4 of the Scottish Arbitration Rules

The limitation of the Scottish arbitration laws before the Arbitration (Scotland) Act 2010 was highlighted by the draftsmen during the enactment process for the new Act, The specific limitations pointed out were the lack of power to award damage, expenses or interests and the absence of powers allowing arbitrators to move arbitration forward without undue delay. Part 4 of the Rules – all default rules – are introduced to remedy this by providing a fall-back system to ensure the smooth operation of arbitration proceedings.

PROCEDURE AND EVIDENCE – r 28

Unless modified or disapplied by the parties’ agreement, r 28 (a default rule) offers the arbitrator the power to decide the procedure to be followed and also evidential matters. For the evidential matters, the tribunal may determine the admissibility, relevance, materiality and weight of any evidence. For instance, the tribunal may determine whether, and, if so, to what extent, the tribunal should take the initiative in ascertaining the facts and the law, and whether to apply rules of evidence used in legal proceedings or any other rules of evidence. Regarding the procedures, r 28(2) provides “an illustrative, but not exhaustive” list of the powers.

GENERAL

Apart from demonstrating their intention to subject themselves to the jurisdiction of arbitration, the first step the parties have to take in order to resolve the dispute between them is to appoint an arbitrator or a number of arbitrators to compose an arbitral tribunal. Before the coming into force of the Arbitration (Scotland) Act 2010, the term “arbiter” was commonly used in Scots law. An arbiter is defined as a person appointed by the parties to determine the disputes only in accordance with the law. However, a study into the practice of international commercial arbitration indicates that the term “arbitrator” is widely used and international arbitrators not only apply the law but also apply general equitable considerations to determine the disputes between the parties. Consequently, in order to keep up with modern international arbitration practice, the term “arbitrator” is used throughout the Act. According to s 2(1) of the Arbitration (Scotland) Act 2010, “arbitrator” is defined as a sole arbitrator or a member of a tribunal, while “tribunal” means a sole arbitrator or panel of arbitrators. As an arbitrator is essential in deciding the disputes between the parties, the Arbitration (Scotland) Act 2010 provides detailed provisions governing the appointment of arbitrators, jurisdiction of arbitrators, duties of arbitrators, powers of arbitrators and immunity of arbitrators, as well as the issues of the arbitrator's expenses and fees. All these issues will be discussed in turn in this chapter.

The Scottish Arbitration Rules contained eight provisions in Pt 7 to regulate the issues which may arise from arbitration fees and expenses. The purpose of Pt 7 is to clarify the definitions of fees and expenses incurred in arbitration and determine who is responsible for paying such fees and expenses to protect arbitrators. To protect the parties, the Rules also contain provisions for liability for recoverable arbitration expenses.

ARBITRATION EXPENSES – r 59

Rule 59 contains a default provision defining the term “arbitration expenses” incurred in arbitration proceedings. In accordance with r 59, “arbitration expenses” means the arbitrators’ fees and expenses for which the parties are liable under r 60; any expenses incurred by the tribunal when conducting the arbitration for which the parties are liable under r 60; the parties’ legal and other expenses; and the fees and expenses of any arbitral appointments referee, and any other third party to whom the parties give powers in relation to the arbitration for which the parties are liable under r 60. It is pointed out that this provision also applies to any fees and expenses incurred by an arbitral appointment referee and arbitration institutions in connection with the arbitration.

Section 59 of the Arbitration Act 1996 also contains a similar definition of arbitration costs. Accordingly, the costs of arbitration include the arbitrators’ fees and expenses, the fees and expenses of any arbitral institution concerned, the legal or other costs of the parties and any incidental costs to any proceedings to determine the amount of the recoverable costs of the arbitration under s 63.

Chapter 3 looks inside “the black box” of the state to highlight the roles of secretaries, ministers, ambassadors, bureaucrats, and ombudsmen. It also looks at how human rights reports are created and help frame the diplomatic process.

This chapter sets out a framework to analyse the existence of international law in thirteenth-century Mongol Eurasia. It uses the category of the Universal Mongol Empire and the creation and use of the yasa (Chinggis Khan’s legal code) as the basis of the legal arena of the time. In addition to the Universal Mongol Empire, Inner Eurasia as a unit of history, the Mongol Commonwealth and the Mongol world system are used to identify the making and practice of international law in this period. The Mongol Khans articulated a specific world view that accommodated the disparateness of the Eurasian landscape, be it peoples, civilizations, religions or political ideologies. Governance (political and economic) of this multifarious empire relied on institutions that permeated throughout the empire and gave it coherence. Thus the focus is on conveying the meaning of sovereignty and law which was a product of interpolity relations that had taken place over centuries. Consequently the chapter seeks to broaden the discipline of modern international law by engaging with historic Eurasia, specifically Mongol rule in the thirteenth century.

Chapter 4 shifts focus to IGOs. States create IGOs to help them achieve common goals or manage international problems. One of the central purposes of IGOs, such as the United Nations (UN) and the European Union (EU), is to promote and protect human rights and this chapter provides an overview of their respective multilateral architecture. This chapter explains the operation of international human rights commissions and councils, and how international criminal courts have become an important tool of human rights and humanitarian diplomacy.

This chapter describes the WTO dispute settlement system, focusing on its structure, procedures, and recent challenges. The WTO system, established in 1995, was a significant innovation in international trade law, featuring mandatory jurisdiction and a detailed set of rules in the Dispute Settlement Understanding (DSU). It aimed to ensure adherence to WTO commitments and provide predictability to the trading system.However, recent US concerns over the Appellate Body’s functioning led to blocked appointments, rendering the Appellate Body defunct and the system non-binding. This crisis has led to the exploration of alternative mechanisms like the Multi-Party Interim Appeal Arbitration Arrangement (MPIA) and increased reliance on regional trade agreement dispute settlement mechanisms.

As the tensions between the Chinese population and the foreign sojourners and settlers of the treaty powers in post-1842 China led to a series of violent riots and deadly conflicts in the second half of the nineteenth century, the foreign powers were desperate to find an effective mechanism to prevent such occurrences. Influenced by a colonial siege mentality and the idea of a state of emergency, the treaty powers created an exception to international law, Western law and Chinese law by subjecting the Chinese government authorities to a regime of strict liability, holding them legally liable for all the ’anti-foreign’ incidents and the resulting damage to foreign interests, regardless of circumstances. This chapter investigates the historical forces and international politics that prompted this regime of strict liability in late Qing China. It calls for more attention to the deep-rooted connections between such practices in the age of empire and the various forms of emergency powers and security regimes that have continued to plague our modern world today.