The purpose of this paper is to refer to certain Scottish Rules of Practice and Procedure in Arbitrations which are not commonly found in the laws of other countries and which, in particular, differ from the equivalent rules of English law. In considering these matters I shall inevitably touch on some of the other subjects referred to at the Congress, in particular the award of damages for breach of contract and the consequences of negligence on the part of the arbiter.

As a preface it might be helpful to deal with the terminology used in Scotland. We refer to an arbiter rather than to an arbitrator, an oversman rather than an umpire and a decree rather than a judgment.

Under Scots law it has always been competent for parties to mercantile transactions to agree either in the contract in which the transaction is embodied or in any subsequent agreement to refer any matters in dispute to arbitration rather than allow such disputes to be decided by the Courts. In most cases the agreement to go to arbitration is contained in an arbitration clause forming part of a contract but it is quite competent once a dispute has arisen for the parties then to agree in a separate contract to go to arbitration rather than have the dispute decided by the Courts.

In general any question relating to any civil right or interest may be referred to arbitration by agreement of the parties and the arbiter has power to deal with both questions of fact and questions of law. Questions relating to public rights or personal status may not be the subject of arbitration and neither may criminal matters nor any illegal or immoral subject.

In Scotland, unlike England, the Courts have no discretion to stay an arbitration to allow the Courts to deal with the dispute. If it is established that the dispute is something which comes within the terms of the arbitration clause then the matter must go to arbitration even if the Court thinks it totally unsuitable to be decided by arbitration.