David Bartos advocate, Edinburgh, Scotland

FAQ Category - Arbitration Services

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How do I contact you ?

 The best way is to contact me or my practice manager Emma Potter of Terra Firma Chambers

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What is an arbiter or arbitrator ?

Essentially he is a private judge who resolves the dispute that the parties have referred to him. Generally like any judge or sheriff he must apply the law in resolving the dispute and must decide in favour of one party or the other. The exception is where the parties agree that he can use general considerations of justice, fairness or equity (ex aequo et bono) to decide the dispute. 

Since the late 19th century the terms "arbiter" and "arbitrator" have been interchangeable in Scotland although until the Arbitration (Scotland) Act 2010 the term "arbiter" was more common.

This was in contrast to England and the rest of the English-speaking world where "arbitrator" was used. The reason for the difference was that in Scotland originally "arbiter" was restricted to a person who was restricted to using the law in deciding the dispute whereas an "arbitrator" meant a person who decided the dispute ex aequo et bono

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Is an arbitrator like a mediator ?

The job of a mediator is to find common ground between disputing parties and encourage them to settle. A mediator is not there to decide the rights and wrongs of a dispute.

By contrast an arbitrator’s job is to decide the rights and wrongs of a dispute.

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Is an arbitrator's decision binding ?

Apart from a few exceptions, it is binding on both parties and can be enforced in Scotland like a Scottish court decree (judgment) and outside of Scotland more extensively than such a decree. 

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Why choose arbitration ?

  • Specialist decision-making        the arbiter should be someone who is already knowledgeable in the area of dispute. By contrast in court the identity of a sheriff or judge may not be known until years into the dispute and he or she will be a generalist and may not be knowledgeable or up to date in the area of law in question.
  • Speed     a dispute can be decided within a fixed time limit, unlike most court procedures. Win or lose closure closure can be achieved quicker.
  • Flexibility of procedure    There is no need to keep to rigid court procedures and formal pleadings. Expensive hearings can be kept to a minimum. Parties can agree to a documents only arbitration or one with limited hearing of witnesses. Disputed issues can be focused at an early stage.
  • Flexibility of representation     parties need not have legal representation
  • Informality     a dispute can be heard at suitable premises anywhere
  • Cost        all of the above can reduce costs
  • Confidentiality and privacy        provided both parties agree, with some exceptions.

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Is there a right of appeal ?

There is a right of appeal only in limited circumstances. Appeal procedures prolong the duration and expense of a dispute. One of the attractions of arbitration is that it is designed to be final and thereby prevent a dispute from dragging on and costing more.

Appeals are possible only where the arbitrator lacks power from the parties to decide the dispute (a jurisdictional appeal) or the arbitrator's procedure has been seriously irregular causing substantial injustice or (unless the parties have disapplied it) obvious error in the use of the law to decide the dispute. See rules 67 to 70 in the schedule to the Arbitration (Scotland) Act 2010 for details. 

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What type of dispute can an arbitrator decide ?

An arbitrator can decide almost any type of dispute which is not a criminal or administrative matter.

I am available to act as an arbitrator in any dispute particularly in relation to 
commercial disputes, property, and wills and inheritance matters.

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How much does an arbitrator cost ?

This is a matter for negotiation. What I will charge depends on the nature and complexity of the work and the time taken up by it. The value of the case is also a factor. The idea is that the fee will be reasonable taking those factors into account. The fee is agreed in advance. For more information contact me or my practice manager Emma Potter of Terra Firma Chambers. 

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Does an arbitrator have to appoint a clerk ?

There is a power for an arbitrator to appoint a clerk to assist him with the administration of the dispute resolution process e.g. to store and send out documents. However it is not necessary to have a clerk, particularly if the arbitrator is himself legally qualified.

Normally, I will not appoint a clerk. This makes the arbitration more cost-effective. If I thought that a clerk was necessary e.g. because of an exceptional number of documents, I would let you know at the time of appointment and seek your agreement. 

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What are an arbitrator's qualifications ?

No formal qualifications are strictly speaking necessary. That said many practicing arbitrators/arbiters hold Membership or Fellowship of the Chartered Institute of Arbitrators. The Chartered Institute exists to promote and facilitate the decision of disputes by arbitration and other non-court processes. It has many thousands of members throughout the world and a Scottish Branch

For the qualification of Fellowship (F.C.I. Arb.)) one has to attend and pass a training course, sit and pass an award writing examination (pass mark 70%) and pass a peer interview. The emphasis throughout is on fairness, thoroughness and expedition of and within an arbitration in order to achieve the best quality of justice.

 

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What are your standards of service ?

I follow the Chartered Institute of Arbitrators Code of Professional and Ethical Conduct (October 2009) and the Code of Conduct for Arbitrators of Terra Firma Chambers

I am obliged to act fairly, give each party a reasonable opportunity of presenting their case and answer their opponent's case. 

I will adopt procedures suitable for the resolution of the particular case in question avoiding any unnecessary delay or expense. 

I can produce a binding award (decision) up to 6 months or less (e.g. up to 100 days) after appointment. It can even be less than that and will depend on the nature of the dispute and the agreement between myself and the parties. 

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