3.—(1) In any case where the apportionment is to be carried out by arbitration, an arbiter shall be appointed by agreement between the transferor and transferee within the period of two months referred to in regulation 8(1)(a) (referred to in this paragraph as “the relevant period”) and the transferee shall notify the Minister in writing of the appointment of the arbiter within fourteen days from the date of the appointment.
(2) Notwithstanding subparagraph (1) above, the transferor or the transferee may at any time within the relevant period make an application to the Minister for the appointment of an arbiter.
(3) If at the expiry of the relevant period an arbiter has not been appointed by agreement between the transferor and the transferee nor an application made to the Minister under subparagraph (2) above, the Minister shall at his own instance proceed to appoint an arbiter.
4.—(1) In any case where a prospective apportionment is to be made by arbitration, an arbiter shall be appointed by agreement between the occupier and any other interested party or, in default, by the Minister on an application by the occupier.
(2) Where an arbiter is appointed by agreement in terms of subparagraph (1) above, the occupier shall notify the Minister in writing of the appointment of the arbiter within fourteen days from the date of the appointment.
5.—(1) Where, in terms of a notice given by the Minister under regulation 14, an apportionment or prospective apportionment is to be carried out by arbitration, the Minister shall apply to the Scottish Land Court for the appointment of an arbiter.
(2) Any fee payable by the Minister on an application to the Scottish Land Court under subparagraph (1) above shall be recoverable by him as a debt due from the other parties to the arbitration jointly or severally.
(3) Where the Minister is to be a party to an arbitration (otherwise than in terms of a notice given under regulation 14), the arbiter shall, in lieu of being appointed by the Minister, be appointed by the Scottish Land Court.
6. If the person appointed arbiter dies, or is incapable of acting, or for seven days after notice from any party requiring him to act fails to act, a new arbiter may be appointed as if no arbiter had been appointed.
7. No party to the arbitration shall have power to revoke the appointment of the arbiter without the consent of all other parties.
8. Every appointment, application, notice, revocation and consent under the foregoing paragraphs must be in writing.
9. The remuneration of the arbiter shall be—
(a)where he is appointed by agreement between the parties, such amount as may be agreed upon by him and the parties or, in default of agreement, fixed by the auditor of the sheriff court (subject to an appeal to the sheriff) on an application made by the arbiter or one of the parties;
(b)where he is appointed by the Minister, such amount as may be fixed by the Minister;
(c)where he is appointed by the Scottish Land Court, such amount as may be fixed by that Court;
and shall be recoverable by the arbiter as a debt due from any one of the parties to the arbitration.
10. The parties to the arbitration shall within twenty-eight days from the appointment of the arbiter deliver to him a statement of their respective cases with all necessary particulars; and—
(a)no amendment or addition to the statement or particulars delivered shall be allowed after the expiry of the said twenty-eight days except with the consent of the arbiter;
(b)a party to the arbitration shall be confined at the hearing to the matters alleged in the statement and particulars delivered by him and any amendment or addition duly made.
11. The parties to the arbitration, and all persons claiming through them respectively, shall, subject to any legal objection, submit to be examined by the arbiter on oath or affirmation in relation to the matters in dispute and shall, subject as aforesaid, produce before the arbiter all samples, books, deeds, papers, accounts, writings and documents, within their possession or power respectively which may be required or called for, and do all other things which during the proceedings the arbiter may require.
12. Any person having an interest in the holding to which the arbitration relates shall be entitled to make representations to the arbiter. The Minister may make such representations where the arbitration follows on a notice given by him under regulation 11.
13. The arbiter shall have power to administer oaths, and to take the affirmation of parties and witnesses appearing, and witnesses shall, if the arbiter thinks fit, be examined on oath or affirmation.
14.—(1) The arbiter shall make and sign his award within three months of his appointment or within such longer period as may, either before or after the expiry of the aforesaid period, be agreed to in writing by the parties or fixed by the Minister.
(2) The arbiter shall notify the terms of his award to the Minister within 8 days of the delivery of that award.
(3) The award shall fix a date not later than one month after the delivery of the award for the payment of any expenses awarded under paragraph 17 below.
15. The award to be made by the arbiter shall be final and binding on the parties and the persons claiming under them respectively.
16. The arbiter may correct in an award any clerical mistake or error arising from any accidental slip or omission.
17. The expenses of and incidental to the arbitration and award shall be in the discretion of the arbiter, who may direct to and by whom and in what manner those expenses or any part thereof are to be paid, and the expenses shall be subject to taxation by the auditor of the sheriff court on the application of any party, but that taxation shall be subject to review by the sheriff.
18.—(1) The arbiter shall, in awarding expenses, take into consideration—
(a)the reasonableness or unreasonableness of the claim of any party, whether in respect of amount or otherwise;
(b)any unreasonable demand for particulars or refusal to supply particulars; and
(c)generally all the circumstances of the case.
(2) The arbiter may disallow the expenses of any witness whom he considers to have been called unnecessarily and any other expenses which he considers to have been incurred unnecessarily.
19. It shall not be lawful to include in the expenses of and incidental to the arbitration and award, or to charge against any of the parties, any sum payable in respect of remuneration or expenses to any person appointed by the arbiter to act as clerk or otherwise to assist him in the arbitration unless such appointment was made after submission of the claim and answers to the arbiter and with either the consent of the parties to the arbitration or the sanction of the sheriff.
20. The arbiter may at any stage of the proceedings, and shall, if so directed by the sheriff (which direction may be given on the application of any party), state a case for the opinion of the sheriff on any questions of law arising in the course of the arbitration. The opinion of the sheriff on any case shall be final.
21. Where an arbiter has misconducted himself the sheriff may remove him.
22. When an arbiter has misconducted himself, or an arbitration or award has been improperly procured, the sheriff may set the award aside.
23. Any amount paid in respect of the remuneration of the arbiter by any party to the arbitration in excess of the amount, if any, directed by the award to be paid by him in respect of the expenses of the award shall be recoverable from the other party or jointly from the other parties.
24. The Arbitration (Scotland) Act 1894(1) shall not apply to any arbitration carried out under this Schedule.
1894 c. 13 (57 and 58 Vict.).