FOUNDING PRINCIPLES: s 1

The Policy Memorandum on the Arbitration (Scotland) Act 2010 clearly recognises the main features of arbitration as “[a]rbitration is … a private means of dispute resolution”, as well as:

“[t]he essence of arbitration is that it is a procedure whereby parties agree to submit a dispute between them to a third party, who often has special expertise or knowledge, and who will act as a private tribunal to produce a final and binding determination of the dispute. By agreeing to go to arbitration, the parties voluntarily deny themselves recourse to the courts or to another method of alternative dispute resolution”.

This approach is clearly adopted in s 1 of the 2010 Act which provides that the founding principles of the Act are:

• “(a) that the object of arbitration is to resolve disputes fairly, impartially and without unnecessary delay or expense,

• (b) that parties should be free to agree how to resolve disputes subject only to such safeguards as are necessary in the public interest,

• (c) that the court should not intervene in an arbitration except as provided by this Act.

• Anyone construing this Act must have regard to the founding principles when doing so.”

Section 1 is a mirror provision of s 1 of the (English) Arbitration Act 1996. The draftsmen expected that the Scottish courts and arbitrators will refer to these three general principles when they are called on to intervene or to interpret the legislation.

Upon entering Hagia Sophia, a visitor's eyes tend immediately to drift upward to take in its cavernous interior (Figure 3.1). And, when they do, one of the first things that a viewer is bound to notice are the roundels of Islamic calligraphy hanging below the central dome, interspersed amid the upper galleries. These gargantuan panels, whose stark gold lettering leaps out from a field of dark forest green, remain one of the most visually strik- ing interventions from the large-scale renovation of the building ordered by the Ottoman sultan Abdülmecid (r. 1839–61) and led by court architect Gaspare Fossati (1809–83) in the mid-nineteenth century. Even in one of the most famous architectural monuments in the world, with innumerable design features competing to attract one's attention, the calligraphic roundels remain impossible to ignore. In some ways, this series of monumental panels could be understood as a unicum, conceived for the demands of outfitting this particular architectural space. Especially in terms of their size, there is no doubt that these panels are distinctive. Each roundel is approximately 7.5 metres in diameter, spanning the entire height of the building's second level. The panels are still held to be some of the largest examples of Islamic calligraphy in the world, an impressive statistic more than a century and a half after their creation.

Shattering Political Evil

Besides explicit references to female monstrosity, gender and feminism, many horror films can be considered as allegories or commentaries on sociopolitical situations. History itself is in some significant ways a horror story of war, genocide, famine and other gruesome events. The ‘incidents of vicious, macabre torture’ involved in the violence of colonialism have often found translation in the aesthetics of the horror film (Smith 2015), albeit for a long time mostly seen from the point of view of the coloniser, or addressed only obliquely, as a sort of generic background for the horror adventures of its white protagonists. As Carol Clover indicated in Men, Women and Chain Saws, in many possession films white science is pitted against black magic, associated with a fear of the revenge of the repressed for the genocide on which many colonies and empires were built. The dread of the coloniser for the colonised is present in many voodoo films where the oppressed natives have a tendency to strike back with occult power or return as ghosts or zombies. I want to mention here I’ll Eat Your Skin, also known as Zombie Bloodbath or Voodoo Bloodbath (dir. Del Tenney, 1964) and the Blaxploitation voodoo-zombie film Sugar Hill (dir. Paul Maslansky, 1974) as some of the many examples of this kind of horror sub-genre. And of course Stanley Kubrick's The Shining (1980), whose haunted hotel is built on a sacred ancient Native American burial ground, can also be considered in this light. Zombie films of the 1970s and 1980s, most famously George Romero's Dawn of the Dead (1978) entirely filmed at night in a shopping mall that brings out the dead, comment on capitalist consumer culture.

GENERAL

Arbitration is a legal procedure whereby the parties submit their disputes to an arbitral tribunal for resolution. Strictly speaking, arbitration is not a self-contained mechanism, as the tribunal does not have power to force the parties, or third parties, either to take part in the arbitration proceedings or to carry out the award if they do not wish to do so. When an arbitral tribunal faces unwilling or unco-operative parties, it becomes essential for the courts to provide assistance to both the parties and the tribunal to ensure the smooth operation of arbitration and the successful enforcement of the arbitral awards. The national courts used to be overzealous in their assisting and supervisory roles. However, the current trend is to have limited judicial intervention, which allows the tribunal to have more power in managing arbitration proceedings. This can be seen in one of the founding principles listed in s 1 of the Arbitration (Scotland) Act 2010 which stipulates that “the court should not intervene in an arbitration except as provided by this Act”. Despite its intention to reduce court intervention to a minimum, the draftsman still felt the need to specify the powers of the court in relation to arbitral proceedings in the issues of referral on a point of law; variation of time limits set by parties; ordering attendance of witnesses; ordering disclosure of evidence; and others. Nevertheless, it is worthwhile noting that all these powers, provided in Pt 5 of the Scottish Arbitration Rules, can be exercised only on the application of the parties.

GENERAL

The importance of the proper law

To decide the substance of the issues submitted to arbitration, arbitrators have to apply law, or rules of law, to decide the facts of the disputes and the rights and obligations of the parties involved. This chosen law is termed proper law or substantive law in different literature. A valid choice of the proper law of the contract has its own significance in ensuring a speedy resolution of the dispute. The importance of this issue can be analysed from three aspects: the advantages of international commercial arbitration; the expectations of the parties; and the validity of arbitral awards.

As most authors have agreed, compared with national court proceedings, international commercial arbitration is a more flexible and speedy way to resolve international commercial disputes. To safeguard its reputation of speed and flexibility, this mechanism offers the parties quite a high level of freedom in deciding how they would like their disputes to be resolved. In general, arbitrators are usually required to apply the parties’ choice of proper law to the dispute. In the cases where no proper law of the contract is expressed by the parties or the choice is invalid, the arbitrators have to spend more time choosing the proper law from an examination of a large number of factors, such as the nationalities of the parties, the subject matter of the contract, the place of performance, the place of contracting, the form of the contract, the language used and the terms of the arbitration agreement. Apart from the fact that arbitrators have to spend more time in deciding the proper law, arbitration procedures can be delayed to a great extent if the parties object to the choice made by the arbitrators and resort to court proceedings. As a result, the aim of providing a speedy service through international commercial arbitration may not be achieved under such circumstances.

Back then, no more than a century ago, European and American architects had at their disposal a rich language of European architecture from antiquity through the eighteenth century. The nineteenth century was the high-point of this architectural pluralism. Architects, clients and their publics understood these vocabularies of form, but then that repertory of style gradually disappeared, supplanted by the personal styles of architects or architectural movements. Historicist architecture came to be regarded as eclectic – a motley, disparate, even incoherent array of styles – as its architectural language or semantics of form ceased to be understood. The decades between the First and Second World Wars witnessed the confrontation between a nineteenth-century historicism that lingered into the inter-war period and a modernism that rejected the past. Since victors write history, an avant-garde architectural history arose that glorified the modernist revolution, provided enabling fictions for why the new was better than the old, and relegated what came before to historical oblivion. In America, modernism had become hegemonic by the 1960s, and its social and political offspring, urban renewal, purified cities of their now unfashionable older structures.

Without access to earlier styles, architects lost their ability to compose meaningful structures understood by the public. Once, the classical orders had been employed for banks and governmental buildings to lend them the gravitas of antiquity, the Gothic became the standard idiom for Protestant churches, and Catholic churches imitated the Romanesque or varieties of Renaissance and Baroque architecture with special reference to churches in Rome. American synagogues constituted a special variant of this history. Jewish congregations embraced modernism more readily than did Christian denominations.

Kiss of the Vampire: Embracing Lust and Loss One of the oldest revenant figures of the horror genre is the vampire. The vampire as blood-sucking spirit, jinn, incubus, pontianak, succubus and other demonic incarnations belongs to the mythology of many different cultures, each with their own variations on the theme of nocturnal creatures who crave blood (Bane 2010; White 2000). Often the vampire is associated with suicide victims or other unlucky returning dead ones who want revenge or redemption, and frequently the vampire is connected further to monstrous creatures such as werewolves. The best-known modern version of the vampire appears in Bram Stoker's 1897 novel about Count Dracula, which introduced the vampire as a charming seducer, and popularised vampire symbols such as the bat-ridden haunted castle, the coffin in which the vampire sleeps during the day, and his sensitivity to sunlight, garlic and crucifixes. There are countless versions of the vampire myth in film and popular culture that have been described extensively by others, all beyond the scope of this book (Weinstock 2012; Bramesco 2018).

With respect to gender, Count Dracula has been associated with feminine seductive powers, closely associated with the legendarily bloody Countess Elizabeth Bathory (McNally 1985; Penrose 2012) or Carmilla, the lesbian vampire from Sheridan Le Fanu's gothic novel of 1872. In The Monstrous-Feminine, Barbara Creed focuses in particular on the lesbian vampire, which became popular in the 1970s with films such as Vampyros Lesbos (dir. Jesus Franco, 1971), Daughters of Darkness (dir. Harry Kümel, 1971) and The Hunger (dir. Tony Scott, 1983).

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.

Hagia Sophia, the colossal structure whose domes have defined Istanbul's skyline for a millennium and a half, has led – and continues to lead – multiple lives. The present volume tracks its constantly fluctuating status and meaning to a wide variety of stakeholders during the long nineteenth century, a crucial yet understudied period in the building's history, c. 1739–1934. We hope that it might serve simultaneously as a detailed examination of a fascinating moment in the biography of a building, and as a resource for considering its enduring significance in the present.

In the summer of 2020, while the chapters in this book were still under preparation, a Turkish high court ruled that the transformation of Hagia Sophia into a museum in the early twentieth century was unlawful. The effects of this ruling were immediate, paving the way for the site's re-conversion into a mosque in a matter of weeks. As responses to these events erupted across news networks, social media and countless op-eds, the urgency for an account of Hagia Sophia during the late Ottoman period became even more apparent. For, we contend, it was during the long nineteenth century that Hagia Sophia's contested status, its use as a sign for something else, first began to determine the fate of its physical fabric.

This volume begins with Hagia Sophia's transformation from a free-standing mosque to a multi-functional complex under Sultan Mahmud I (r. 1739–43). Contributors continue the story by examining the large-scale restorations of Hagia Sophia ordered by Sultan Abdülmecid (r. 1839–61) and carried out by the Swiss-Italian architect Gaspare Fossati. The book concludes with the abolition of the sultanate (1922) and the debates about the building during the first decade of the Turkish Republic, which culminated in the decision (1934) to turn Hagia Sophia into a museum.

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.

Mother of All Horror

Of all the monstrous-feminine tropes in horror cinema, woman's reproductive powers are perhaps the most frightening. Creed evokes the ancient connection between woman, womb and the monstrous as well as the image of the abject inside the maternal body as frequent tropes in horror cinema. Ridley Scott's Alien (1979) contains not only a reworking of Freud's primal scene (where the child sees the parents have intercourse and fantasises about the question: ‘where do babies come from?’) as a scene of birth, but also the idea of the archaic parthenogenetic mother, the mother who can give birth without the help of a male counterpart. Creed analyses several birth scene variations inside the mother-ship of Alien, all staged by the invisible alien mother. Alien is also an example of a horror film that contains ‘monstrous wombs … intra-uterine settings that consist of dark, narrow, winding passages leading to a central room, cellar or other symbolic place of birth’ (Creed 1993: 53). Other horror films refer to the monstrosity of the womb belonging to a woman who gives birth to some kind of terrifying creature. Some of the most famous male-directed horror films address the archaic or parthenogenetic mother who has the power of reproduction beyond male control, such as the animalistic mother in David Cronenberg's The Brood (1979), who incubates offspring in a repugnant sac outside her belly that she bites open to release the atrocious creatures that she grows there. Other horror fantasies pertaining to pregnancy explore the idea of impregnation by the devil or other demon entities (such as evil computers), most famously rendered in Rosemary's Baby (dir. Roman Polanski, 1968) and Demon Seed (dir. Donald Cammell, 1977).

A May 1846 irade by Sultan Abdülmecid I declared Hagia Sophia to be ‘an esteemed and ancient monument’ whose importance is ‘well-established’; ‘hence’, the document maintained, the prolongation of its state of desolation ‘before the general regard’ was ‘neither appropriate nor fitting’. Consequently, an ambitious restoration project was launched in 1847 under the technical and aesthetic authority of the Swiss-Italian architect Gaspare Fossati, and under the engaged attention of the Ottoman bureaucrats and the young sultan. The most urgent interventions concentrated on the consolidation of the compromised main dome and on redressing the static instability that slanted twelve columns in the upper gallery. The structural consolidation was followed by attending to the missing or damaged decorations, executing a cohesive stucco programme throughout the structure, and repairing and painting the exterior walls. Finally, the architect provided the ancient edifice with new additions, including a new imperial loge for the Sultan. Yet, the aspect of the restoration that would attract the most popular and scholarly attention arose by coincidence: the uncovering (and then the restoration and recovering) of the figural mosaics that were unseen and forgotten for generations.

The majority of this impressive project was completed in two years, and the building was reopened for worship during Ramadan of 1849. The technical aspects of the restoration have been described by historians of art and architecture,4 while the official correspondences that reveal the bureaucratic and financial backdrop of the project have been brought to light by scholars of Ottoman history.

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.