Axiom Advocates News

Arbitration Appeal No. 2 of 2019: correction of arbitral awards

Back to News Listing

Arbitration Appeal No. 2 of 2019: correction of arbitral awards


28 May 2020

Lord Clark has issued his Opinion in Arbitration Appeal No. 2 of 2019. The full opinion can be found here.

The Petitioner and Respondent were, respectively, the tenant and landlord of commercial office premises. A rent review dispute had been referred to arbitration. A preliminary legal issue was identified concerning the proper interpretation of the contractually defined phrase “Open Market Rent”. Following a hearing before the arbitrator a part award was issued by him on 11th December 2018.

Following certain correspondence between the parties and, latterly, the arbitrator, including the tendering of written submissions, the Petitioner made an application to the Court, for correction of the part award, on 29th August 2019, and a first order was pronounced on 3rd September 2019.

Rule 58 of the Scottish Arbitration Rules provides inter alia:

              “(1)        The Tribunal may correct an award so as to:

[…]

(b)         clarify or remove any ambiguity in the award.

              “(2)        The tribunal may make such a correction –

on its own initiative, or

on an application by any party.

[…]

“(4)        Such an application is valid only if made –

within 28 days of the award concerned, or

by such later date as the Outer House or the Sheriff may, on an application by the party, specify (with any determination by the Outer House or Sheriff being final).

[…]”

The Petitioner argued that the part award contained an important ambiguity and, further, that it had not been dilatory in making its application for correction, on the basis inter alia that it had not initially been apparent that the part award contained an ambiguity.

Lord Clark refused the Petition holding both that the part award was not ambiguous, and thus did not require to be correct, and, separately, that the Court’s discretion, in terms of Rule 58, fell to be applied in accordance with the interests of justice which, in this case, against the Petitioner.

The Opinion issued by Lord Clark provides the first consideration by the Court of Session of Rule 58 of the Scottish Arbitration Rules. It provides a useful insight into the approach which the court ought to take in relation to applications for correction of awards, including in particular the extent to which assistance might be gained from authorities under the (English) Arbitration Act 1996.

David Thomson QC, of Axiom Advocates, appeared on behalf of the successful Respondent landlord.