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Outside the box

17 May 10

Two arbitration experts call on Scots lawyers to "think big", ahead of a forthcoming conference

by Iain Clark, Steven Walker

Much of the publicity so far on the passing of the Arbitration (Scotland) Act 2010 (e.g. Journal, February 2010, 8 and 24) has related to the renaissance of arbitration work in Scotland, both for domestic disputes and to attract international disputes here, but there has been little discussion of the opportunities for Scottish lawyers beyond our nation’s boundaries.

The opportunities for solicitors in particular arise from the fact that we have traditionally had direct contact with our clients and their businesses, and are familiar with what they wish to achieve (or may realistically be able to achieve, dependent on prevailing market conditions). Being in that position to influence our clients, solicitors are key to the success of the Act by:

  • introducing arbitration clauses, or multi-tier arbitration clauses, into contracts during the negotiation and drafting stages (particularly of commercial contracts);
  • providing positive advice regarding arbitration as a preferred form of dispute resolution, and maintaining control by choice of arbitrators;
  • appointments as arbitrators;
  • conducting the advocacy in arbitrations.

As one of the very few Scottish solicitors experienced in the practice and conduct of international arbitrations in the UK and abroad (e.g. under ICC (International Chamber of Commerce) and LCIA (London Court of International Arbitration) procedures), I can also say that, if Scottish solicitors are prepared to “think big”, there are real opportunities to prepare, advise, and conduct international arbitrations in other jurisdictions.

  • Iain K Clark is a solicitor advocate with Young & Partners LLP, Glasgow, and Visiting Lecturer in International Commercial Arbitration at the University of Edinburgh and the Centre for Energy, Petroleum, Mineral Law and Policy (CEPMLP), University of Dundee.

Scottish lawyers can easily become international lawyers. Even if the governing law or the law of the place of the arbitration is not Scottish, there are numerous opportunities for Scottish lawyers to seize this international business. Frequently Scottish lawyers become involved in a dispute because they already represent a Scottish party to the dispute, but there is no reason why Scottish lawyers could not conduct arbitrations (at home or, more interestingly, abroad) for parties who have no link to Scotland at all (as does in fact happen already). Expert reports on the applicable laws can be obtained from lawyers qualified in the relevant jurisdictions, much in the same way as reports are obtained from expert engineers or health and safety experts etc. The international arbitration community is familiar with such arrangements.

There are clear lessons to be learned from other traditional arbitration jurisdictions such as London, Sweden or Switzerland (including questions as to whether or not it would be appropriate for Scotland to have its own Centre for International Arbitration, as an ambassadorial platform to support and secure arbitration business for Scotland and Scottish lawyers).

Scottish lawyers have a tremendous competitive edge, given that we can produce high quality work at comparatively modest cost, when compared to those of other jurisdictions.  If we “think big” we can take a significant slice of the international arbitration pie.

  • Steven P Walker is an advocate and member of Terra Firma Chambers, Edinburgh, a barrister and member of Tanfield Chambers, London; and an Honorary Fellow and Course Director of the LLM in International Arbitration at the University of Edinburgh. He is also a member of the global academic faculty of the Centre for Energy, Petroleum, Mineral Law and Policy (CEPMLP), University of Dundee.

All of these interesting issues (and more) will be discussed in detail at the international conference: “The Arbitration (Scotland) Act 2010: A New Beginning”, being held in Edinburgh on 23 June 2010 through the joint cooperation of the University of Edinburgh, the Chartered Institute of Arbitrators, the Faculty of Advocates and the Law Society of Scotland, in association with the Royal Institution of Chartered Surveyors; and presented by some of the leading practitioners in Scotland and worldwide.

If you are interested in attending, please contact Update at: (t: 0131 226 7411).

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