Back to the Scottish Parliament Business Bulletin No. 142/2009: Tuesday 29 September 2009
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Section G – Bills

New amendments to Bills lodged on 28 September 2009

Arbitration (Scotland) Bill – Stage 2

After section 5

Jim Mather

1 After section 5, insert—

<Law governing arbitration agreement

Where—

(a) the parties to an arbitration agreement agree that an arbitration under that agreement is to be seated in Scotland, but

(b) the arbitration agreement does not specify the law which is to govern it,

then, unless the parties otherwise agree, the arbitration agreement is to be governed by Scots law.>

Schedule 1

Jim Mather

2 In schedule 1, page 14, line 9, after <agreement> insert <(or any person claiming through or under such a party)>

Jim Mather

3 In schedule 1, page 15, line 7, leave out <an arbitrator is not> and insert <a tribunal (or any arbitrator who is to form part of a tribunal) is not, or cannot be,>

Jim Mather

4 In schedule 1, page 15, line 12, leave out <send a copy> and insert <give notice>

Jim Mather

5 In schedule 1, page 15, line 13, leave out from <receiving> to <of> in line 14 and insert <notice of reference being given by making an>

Jim Mather

6 In schedule 1, page 16, line 6, after <parties> insert <, and

( ) in the case of an individual not yet appointed as an arbitrator, to any arbitral appointments referee, other third party or court considering whether to appoint the individual as an arbitrator,>

Jim Mather

7 In schedule 1, page 16, line 31, leave out <receiving a competent objection> and insert <a competent objection being made>

Jim Mather

8 In schedule 1, page 18, line 11, at end insert—

<( ) The Outer House’s determination of an application for resignation is final.>

Jim Mather

9 In schedule 1, page 18, line 21, at end insert—

<( ) The Outer House’s determination of an application for an order is final.>

Jim Mather

10 In schedule 1, page 18, line 33, after <effect> insert <in relation to an arbitration>

Jim Mather

11 In schedule 1, page 18, line 33, after <arbitrator> insert <for that arbitration>

Jim Mather

12 In schedule 1, page 20, line 5, leave out from <other> to <being> and insert <parties have agreed that such an application may be>

Jim Mather

13 In schedule 1, page 20, line 32, leave out <treated> and insert <actionable>

Jim Mather

14 In schedule 1, page 21, line 22, at end insert <or

( ) any civil proceedings relating to the arbitration in respect of which an order has been granted under section 13 of this Act,>

Jim Mather

15 In schedule 1, page 22, line 28, after <made> insert—

<( ) where the tribunal consists of 3 or more arbitrators, by the last arbitrator to be appointed, or

( ) where the tribunal consists of 2 arbitrators,>

Jim Mather

16 In schedule 1, page 24, line 23, leave out <(see rule 30)>

Jim Mather

17 In schedule 1, page 25, line 13, leave out from <other> to <being> and insert <parties have agreed that such an application may be>

Jim Mather

18 In schedule 1, page 26, line 23, at end insert—

<( ) The tribunal may continue with the arbitration pending determination of the application.>

Jim Mather

19 In schedule 1, page 27, line 18, at end insert—

<Rule 44A Power to award payment and damages M

44A(1) The tribunal’s award may order the payment of a sum of money (including a sum in respect of damages).

(2) Such a sum must be specified—

(a) in any currency agreed by the parties, or

(b) in the absence of such agreement, in such currency as the tribunal considers appropriate.>

Jim Mather

20 In schedule 1, page 27, leave out lines 22 and 23

Jim Mather

21 In schedule 1, page 27, line 26, after <document> insert <(other than a decree of court)>

Jim Mather

22 In schedule 1, page 28, leave out lines 6 and 7

Jim Mather

23 In schedule 1, page 28, line 10, at end insert—

<( ) Interest is to be calculated—

(a) in the manner agreed by the parties, or

(b) failing such agreement, in such manner as the tribunal determines.>

Jim Mather

24 In schedule 1, page 28, leave out lines 13 to 15

Jim Mather

25 In schedule 1, page 29, line 13, after first <to> insert <deliver or>

Jim Mather

26 In schedule 1, page 29, leave out lines 27 to 35

Jim Mather

27 In schedule 1, page 30, line 34, leave out <tribunal receiving the application> and insert <application being made>

Jim Mather

28 In schedule 1, page 33, line 1, leave out <Where no such award is made> and insert <Until such an award is made (or where the tribunal chooses not to make such an award)>

Jim Mather

29 In schedule 1, page 33, line 19, after <made> insert <only>

Jim Mather

30 In schedule 1, page 35, line 20, at end insert <or

( ) that an arbitrator has not treated the parties fairly,>

Jim Mather

31 In schedule 1, page 35, line 36, leave out from beginning to <proceed> in line 1 of page 36 and insert—

<( ) A legal error appeal may be made only—

(a) with the agreement of the parties, or

(b) with the leave of the Outer House.

( ) Leave to make a legal error appeal may be given>

Jim Mather

32 In schedule 1, page 36, line 4, after <award> insert <(including any facts which the tribunal treated as established for the purpose of deciding the point)>

Jim Mather

33 In schedule 1, page 36, line 8, leave out from <and> to end of line 13 and insert—

<( ) An application for leave is valid only if it—

(a) identifies the point of law concerned, and

(b) states why the applicant considers that leave should be granted.

( ) The Outer House must determine an application for leave without a hearing (unless satisfied that a hearing is required).

( ) The Outer House’s determination of an application for leave is final.

( ) Any leave to appeal expires 7 days after it is granted (and so any legal error appeal made after then is accordingly invalid unless made with the agreement of the parties).>

Jim Mather

34 In schedule 1, page 36, line 14, leave out <which proceeds>

Jim Mather

35 In schedule 1, page 36, line 33, at end insert <the later of the following dates>

Jim Mather

36 In schedule 1, page 36, line 34, leave out <takes effect, or> and insert <is made,

( ) if the award is subject to a process of correction under rule 56, the date on which the tribunal decides whether to correct the award, or>

Jim Mather

37 In schedule 1, page 36, line 36, at end insert—

<A legal error appeal is to be treated as having being made for the purposes of this rule if an application for leave is made.>

Jim Mather

38 In schedule 1, page 37, line 16, after <made> insert <only>

Jim Mather

39 In schedule 1, page 40, line 8, at end insert—

<Rule 77A Unfair treatment D

A tribunal (or arbitrator) who treats any party unfairly is, for the purposes of these rules, to be deemed not to have treated the parties fairly.>

Jim Mather

40 In schedule 1, page 42, line 14, at end insert—

<part award rule 51>

Jim Mather

41 In schedule 1, page 42, line 15, at end insert—

<provisional award rule 50>

Section 7

Jim Mather

42 In section 7, page 3, line 5, at end insert—

<rule 4 (eligibility to act as an arbitrator)>

Jim Mather

43 In section 7, page 3, leave out line 11 and insert—

< rule 44A (power to award payment and damages)

rule 46 (interest)

rule 51 (part awards)>

Section 8

Jim Mather

44 In section 8, page 3, line 32, leave out <(for example,> and insert <or other document (for example, the UNCITRAL Model Law,>

Section 9

Jim Mather

45 In section 9, page 4, line 3, leave out subsections (1) to (3) and insert—

<( ) The court must, on an application by a party to legal proceedings concerning any matter under dispute, sist those proceedings in so far as they concern that matter if—

(a) an arbitration agreement provides that a dispute on the matter is to be resolved by arbitration (immediately or after the exhaustion of other dispute resolution procedures),

(b) the applicant is a party to the arbitration agreement (or is claiming through or under such a party),

(c) notice of the application has been given to the other parties to the legal proceedings,

(d) the applicant has not—

(i) taken any step in the legal proceedings to answer any substantive claim against the applicant, or

(ii) otherwise acted since bringing the legal proceedings in a manner indicating a desire to have the dispute resolved by the legal proceedings rather than by arbitration, and

(e) nothing has caused the court to be satisfied that the arbitration agreement concerned is void, inoperative or incapable of being performed.>

Before section 10

Jim Mather

46 Before section 10, insert—

<Arbitral award to be final and binding on parties

(1) A tribunal’s award is final and binding on the parties and any person claiming through or under them (but does not of itself bind any third party).

(2) In particular, an award ordering the rectification or reduction of a deed or other document is of no effect in so far as it would adversely affect the interests of any third party acting in good faith.

(3) This rule does not affect the right of any person to challenge the award—

(a) under Part 8 of the Scottish Arbitration Rules, or

(b) by any available arbitral process of appeal or review.>

Section 10

Jim Mather

47 In section 10, page 4, line 22, at end insert—

<( ) No such order may be made if the court is satisfied that the award is the subject of—

(a) an appeal under Part 8 of the Scottish Arbitration Rules,

(b) an arbitral process of appeal or review, or

(c) a process of correction under rule 56 of the Scottish Arbitration Rules,

which has not been finally determined.>

Jim Mather

48 In section 10, page 4, line 34, after <section> insert <or in section 11>

Section 11

Jim Mather

49 In section 11, page 5, line 2, leave out <No>

Jim Mather

50 In section 11, page 5, line 5, leave out <except> and insert <only>

Jim Mather

51 In section 11, page 5, line 12, at end insert—

<( ) Where the parties agree that the UNCITRAL Model Law is to apply to an arbitration, articles 6 and 11(2) to (5) of that Law are to have the force of law in Scotland in relation to that arbitration (as if article 6 specified the Court of Session and any sheriff court having jurisdiction).>

Section 13

Jim Mather

52 Leave out section 13 and insert—

<Anonymity in legal proceedings

(1) A party to any civil proceedings relating to an arbitration (other than proceedings under section 10) may apply to the court for an order prohibiting the disclosure of the identity of a party to the arbitration in any report of the proceedings.

(2) The court, when considering whether to grant such an order, must have regard to whether disclosure—

(a) can reasonably be considered as being needed to protect a party’s lawful interests,

(b) would be in the public interest, or

(c) would be necessary in the interests of justice.>

Section 18

Jim Mather

53 In section 18, page 8, line 11, leave out <adjourn> and insert <sist>

Section 21

Jim Mather

54 In section 21, page 8, line 30, at end insert—

<( ) in subsection (2)(b), after "Scotland" insert "in respect of which an arbitrator (or panel of arbitrators) has been appointed",>

Section 22

Jim Mather

55 In section 22, page 9, line 33, at end insert—

<( ) Despite subsection (2)(b), an arbitral appointments referee is not obliged to appoint arbitrators in respect of whom the referee provides training or operates disciplinary procedures.>

Section 24

Jim Mather

56 In section 24, page 10, line 18, after <Law> insert <, the UNCITRAL Arbitration Rules>

Jim Mather

57 In section 24, page 10, line 18, at end insert—

<( ) Before making such an order, Ministers must consult such persons appearing to them to have an interest in the law of arbitration as they think fit.>

Section 29

Jim Mather

58 In section 29, page 11, line 13, leave out <and 9> and insert <, 9, 11 and (Anonymity in legal proceedings)>

Section 31

Jim Mather

59 In section 31, page 12, line 22, at end insert <, or

( ) under section (Transitional provisions)(4),>

After section 33

Jim Mather

60 After section 33, insert—

<Transitional provisions

(1) This Act does not apply to an arbitration begun before commencement.

(2) This Act otherwise applies to an arbitration agreement whether made on, before or after commencement.

(3) Despite subsection (2), this Act does not apply to an arbitration arising under an arbitration agreement (other than an enactment) made before commencement if the parties agree that this Act is not to apply to that arbitration.

(4) Ministers may by order specify any day falling at least 5 years after commencement as the day on which subsection (3) is to cease to have effect.

(5) Before making such an order, Ministers must consult such persons appearing to them to have an interest in the law of arbitration as they think fit.

(6) Any reference to an arbiter in an arbitration agreement made before commencement is to be treated as being a reference to an arbitrator.

(7) Any reference in an enactment to a decree arbitral is to be treated for the purposes of section 10 as being a reference to a tribunal’s award.

(8) An express provision in an arbitration agreement made before commencement which disapplies section 3 of the Administration of Justice (Scotland) Act 1972 (c.59) in relation to an arbitration arising under that agreement is, unless the parties otherwise agree, to be treated as being an agreement to disapply rules 40 and 67 in relation to such an arbitration.

(9) In this section, "commencement" means the day on which this section comes into force.>

Members’ Bills Proposals

A Member who has lodged a proposal has the right to introduce a Member’s Bill to give effect to that proposal under Rule 9.14.12 of the Standing Orders provided:

  • the proposal has attracted 18 supporters which include members of at least half of the political parties or groups represented on the Parliamentary Bureau; and
  • the Scottish Executive has not given an indication under Rule 9.14.13 that it or Her Majesty’s Government will initiate legislation to give effect to the proposal.

A proposal (whether draft or final) may be withdrawn at any time by the member who lodged it under Rule 9.14.16 of the Standing Orders.

The Bills page of the parliamentary website shows the current status in this regard.

Names marked with an (*) are new names of support.

Final Proposal for Members’ Bills

Paul Martin: NHS Parking (Scotland) Bill – Proposal for a Bill to require NHS Boards to provide managed parking at all NHS sites for users of those sites and to prohibit charging for parking on all NHS sites (lodged 2 September 2009)

A summary of the responses to the consultation on the draft proposal together with copies of each response, are available in the Scottish Parliament Information Centre (SPICe).

Supported by: Cathy Peattie, Irene Oldfather, Karen Whitefield, Marilyn Livingstone, Cathie Craigie, Michael McMahon, Hugh Henry, George Foulkes, Marlyn Glen, Elaine Smith, Ken Macintosh, Helen Eadie, Frank McAveety, Charlie Gordon, Jackie Baillie, Bill Butler, John Park, Tom McCabe, Richard Baker, James Kelly, Karen Gillon, Pauline McNeill, David Whitton, Margaret Curran, Duncan McNeil, Cathy Jamieson, Trish Godman, Patricia Ferguson, Des McNulty, Claire Baker, Patricia Ferguson, Peter Peacock, Richard Simpson, Wendy Alexander, David Stewart

Gil Paterson MSP: The Palliative Care (Scotland) Bill - Proposal for a Bill to require needs based palliative care to be available to all with a progressive life-limiting condition (lodged 2 September 2009)

A summary of responses to consultation on the draft proposal together with copies of each response and a summary of the responses, including the conclusions drawn from the responses, are available in the Scottish Parliament Information Centre (SPICe).

Supported by: Dave Thompson, Jackie Baillie, Hugh O’Donnell, Des McNulty, Elaine Murray, Jamie Hepburn, Mike Pringle, Margo MacDonald, Karen Gillon, Jamie Stone, John Farquhar Munro, Alasdair Allan, Charlie Gordon, Christopher Harvie, Cathy Peattie, Marilyn Livingstone, Trish Godman, Nanette Milne, Michael Matheson, Bob Doris, Christina McKelvie, Anne McLaughlin, Joe FitzPatrick, Bill Kidd, Sandra White, Bill Wilson, Linda Fabiani, Brian Adam, Andrew Welsh, Maureen Watt, John Wilson, Tricia Marwick, Aileen Campbell, Shirley-Anne Somerville, Angela Constance, Rob Gibson, Stuart McMillan, Willie Coffey, Ian McKee, Ken Macintosh, Robin Harper, Hugh Henry

David Stewart MSP: Proposed Victims’ Commissioner (Scotland) Bill - Proposal for a Bill to provide for the establishment and functions of a Victims’ Commissioner for Scotland (lodged 8 September 2009).

A summary of responses to consultation on the draft proposal together with copies of each response are available in the Scottish Parliament Information Centre (SPICe).

Supported by: Paul Martin, Jamie Stone, John Farquhar Munro, Margo MacDonald, Charlie Gordon, Bill Butler, Duncan McNeil, John Park, Pauline McNeill, Rhoda Grant, Michael McMahon, Lewis Macdonald, Elaine Murray, Frank McAveety, Peter Peacock, Richard Baker, Elaine Smith, James Kelly, Richard Simpson, Malcolm Chisholm, Cathy Jamieson, Mary Mulligan, David Whitton, Sarah Boyack, Wendy Alexander, Tom McCabe, Helen Eadie, Andy Kerr, Ken Macintosh, George Foulkes, Irene Oldfather, Jackie Baillie, Cathie Craigie, Marilyn Livingstone, Claire Baker, Cathy Peattie, Rhona Brankin

Contents An A B C D E F G H I J