Unquestionably, commercial clients expect our courts and dispute resolution processes to be commercial. They expect to have their disputes resolved efficiently, expeditiously, and by judges and decision-makers with commercial experience and specialist expertise.
In fact, the commercial court in the Court of Session was established in 1994 to meet those expectations - providing businesses with a specialist forum for the speedy, efficient disposal of actions of a commercial or business nature. Thereafter, commercial courts were instigated in the Sheriff Courts.
Speaking at the WS Society Commercial Dispute Resolution Conference this month, the lead commercial court judge, Lord Clark, explained that dealing with cases expeditiously remains, nearly 30 years later, the key objective of the commercial court. To achieve that outcome, businesses litigating in the commercial court can expect active case management by a commercially experienced judge who takes ownership of the case from the outset, as well as greater flexibility in procedure than in other court processes, such as the ordinary procedure. In my opinion, these significant steps have made the commercial court a popular choice for businesses litigating in Scotland.
Moreover, just as the Covid pandemic compelled the business community to rapidly adapt its practices, it also enforced a significant step-change in commercial court operations. As Lord Clark explained, new technology (in particular remote video hearings) was adopted to ensure cases continued to be dealt with justly and efficiently. Such change, which otherwise may have taken years to materialise, has further increased the flexibility offered by the commercial court.
However, while the commercial court remains the forum of choice for many business disputes in Scotland, the same conference discussed the increase in the use of arbitration as an alternative to litigation in recent years. Evidently, both businesses and lawyers have come to recognise the benefits of this form of dispute resolution.
Arbitration is far from new to Scotland; it has been around for centuries. However, prior to the Arbitration (Scotland) Act 2010, it had generally fallen out of use and was seen as a slow, expensive, and uncertain process, with outdated rules and procedures.
With the 2010 Act came a new modern set of rules for both domestic and international arbitration in Scotland. These offered a number of reasons for both lawyers and their commercial clients to seriously consider the benefits of arbitration. Advantages include flexible procedure and limited grounds of appeal, and the ability of parties to choose an arbitrator with specialist expertise.
Consider for example, disputes with an international element. The ease of enforcement of an arbitration award across the world - in comparison with a court judgment - is a considerable advantage and particularly post-Brexit where the ability to enforce a UK court order in the EU is now far more problematic. Significant too is that arbitration in Scotland is by default, a private and confidential process. This can make arbitration more appealing than litigation for businesses that seek to resolve commercially sensitive disputes out of the public eye.
The advantages of conducting arbitration in Scotland were highlighted to a global audience this month when the Scottish Arbitration Centre hosted the 25th Congress of the International Council for Commercial Arbitration (ICCA). Over 1,000 delegates attended the three-day conference that in my opinion will undoubtedly help promote arbitration as an effective alternative to litigation. Of course, it’s also hoped the conference will lead to an increase in the number of overseas businesses that make Scotland their destination of choice for the conduct of international arbitration.
Naturally, within legal and business circles the respective merits of litigation and arbitration will continue to be debated. However, I believe that, collectively, the WS Society and ICCA conferences have already served the invaluable purpose of highlighting the many benefits open to businesses, regardless of their preferred choice of procedure, should they choose to resolve disputes in Scotland.
Stuart Clubb WS is joint head of Dispute Resolution and Litigation for Shoosmiths in Scotland