Part 4 – Arbitral proceedings
Rule 28 – Procedure and evidence Default
155.Rule 28 is a default rule, that in the absence of agreement between the parties, the arbitrator can determine the procedure to be followed and evidential matters.
156.Rule 28(2) provides an illustrative, but not exhaustive, list of such powers for the tribunal. Arbitrators are for instance allowed to act inquisitorially (rule 28(2)(e)) and can generally disapply the law of evidence (rule 28(2)(h)).
Rule 29 – Place of arbitration Default
157.Rule 29 is a default rule which permits an arbitration seated in Scotland to meet elsewhere.
Rule 30 – Tribunal decisions Default
158.Rule 30 is a default rule. In the absence of agreement between the parties, rule 30(1) provides on a default basis that decisions, orders and awards can be made by all or a majority of the arbitrators.
159.Where there is neither unanimity nor a majority, rule 30(2)(a) provides that any chair will have the casting vote. Rule 30(2)(b) provides that where there is neither unanimity nor a majority decision and there is no agreement as to who is to chair an arbitral tribunal and so take the decision, where there are 3 or more arbitrators, the decision will be made by the last arbitrator appointed and where there are 2 arbitrators, the decision will be made by an umpire, and for appointment of such an umpire in those circumstances.
Rule 31 – Tribunal directions Default
160.Rule 31 is a default rule giving the tribunal the power to give directions to the parties for the purposes of conducting the arbitration and requires the parties to comply with these in the time specified.
Rule 32 – Power to appoint clerk, agents or employees etc. Default
161.Rule 32 is a default rule that an arbitrator can appoint a clerk (and others) to assist in the arbitration. However, the parties’ consent will be required for the appointment of clerks and other staff if significant costs are likely to arise. See rule 24(1)(c)(ii) and the need for the tribunal to avoid unnecessary expenses. Disputes about the “significance” of expenses in rule 32(2) may be resolved by taxation by the auditor of court (which is a process of review of expenses).
Rule 33 – Party representatives Default
162.Rule 33 is a default rule that a party may be represented by a lawyer or any other person chosen by the party. Rule 33(2) provides that any representation of a party must be communicated to the tribunal and other party at the beginning of the arbitral process or as soon as that representation is engaged.
Rule 34 – Experts Default
163.Rule 34 is a default rule, in the absence if agreement to the contrary, that an arbitrator has the power to instruct an expert (also known as a man of skill or an assessor) to provide an opinion on areas outwith the arbitrator’s knowledge to allow a decision in the case. Rule 34(2)(a) provides that the parties must be given a reasonable opportunity to comment on the expert’s written opinion. If the information is to be given in person, rule 34(2)(b) provides that it must be at a hearing at which the parties may ask the expert questions.
Rule 35 – Powers relating to property Default
164.Rule 35 is a default rule which makes provision for protective measures relating to property, including evidence. It gives a tribunal the power to make orders for the production, preservation etc. of property owned or possessed by a party as a protective measure pending the outcome of an arbitration or for the purpose of being used as evidence during the proceedings. These are similar to the powers of a court.
Rule 36 – Oaths or affirmations Default
165.Rule 36 is a default which provides that parties and witnesses may be examined under oath or affirmation which the tribunal may administer.
Rule 37 – Failure to submit claim or defence timeously Default
166.Rule 37 is a default rule. In the absence of agreement between the parties, the arbitrator will have powers to deal with late submission of statements of claim, counterclaims and defences. In rule 37(1) if there is no good reason for delay in submitting a claim and it is likely to give rise to a substantial risk that issues cannot be decided fairly or the defender will be seriously prejudiced the tribunal must terminate the arbitration in so far as it relates to the subject-matter of the claim. Where this happens, the tribunal can make an award which can take the delay into account when allocating liability for recoverable expenses.
167.Rule 37(2) provides that if there is no good reason for the delay in submitting a defence the tribunal must proceed with the arbitration (but it is treated as no admission).
Rule 38 – Failure to attend hearing or provide evidence Default
168.Rule 38 is a default rule. In the absence of agreement to the contrary, if a party fails to attend a hearing (on reasonable notice) or produce any document or other evidence as requested by the tribunal and there is no good reason for not doing so, the tribunal can proceed and make an award based on the information it has.
Rule 39 – Failure to comply with tribunal direction or arbitration agreement Default
169.Rule 39 is a default rule which in paragraph (1) provides the tribunal with power to order a party breaching a direction of the tribunal or the rules and arbitration agreement governing the arbitration to comply. Rule 39(1)(b) means that a tribunal does not have to formally direct a defaulting party to comply with the arbitration agreement before making a compliance order.
170.Rule 39(2) gives the tribunal a number of powers when a party does not comply with an order including taking non-compliance into account when allocating liability for recoverable expenses.
Rule 40 – Consolidation of proceedings Default
171.Rule 40 is a default rule which allows the parties to agree to consolidate the arbitration with another arbitration, or hold concurrent hearings, but the tribunal may not do so on its own initiative. Section 16(6) of the Act states that for statutory arbitrations, notwithstanding rule 40, consolidation is only possible for other arbitrations under the same statutory provision.