Scottish arbitration backed by Law Society & Scottish Govt of no use to clients, say insiders. SCOTTISH ARBITRATION, a new ‘business’ which has sprung up in the wake of the Arbitration (Scotland) Act 2010 backed by the Scottish Government, with participants such as the Faculty of Advocates, the Law Society of Scotland and the Royal Institute of Chartered Surveyors, is “a seedy world full of unaccountable self regulators, dishonest insurance companies and suspect individuals” say legal insiders & consumer groups, warning those who may be considering using arbitration or bringing their arbitration business to Scotland “to forget it and look elsewhere”.
Scottish Arbitration Centre appointed ex Court of Session judge who resigned over ‘officially unexplained allegations’. The recommendation to avoid using the very much self regulator dominated arbitration market in Scotland comes in the wake of a recent report by Scottish Law Reporter, revealing a former Court of Session judge, Lord Dervaird, aka Prof. John Murray QC the judge who STUNNED the Scots legal establishment in the early 1990s by resigning in a cloud of rumours connected to the FETTESGATE ‘Gay Justice Conspiracy' scandal in which several journalists were arrested to cover up allegations against senior members of Scotland’s judiciary, has been appointed as an Honorary Vice President of the Scottish Arbitration Centre, a ‘joint venture’ opened by the SNP’s Fergus Ewing and backed by the Scottish Government, the Chartered Institute of Arbitrators, the Faculty of Advocates, the Law Society of Scotland and the Royal Institute of Chartered Surveyors.
Disgraced US insurers Marsh operating here as Marsh UK insure many backers of Scottish Arbitration Centre. It can also be revealed that most or all of the organisations participating in Scottish Arbitration market have links to the disgraced insurers, Marsh, who were convicted in the United States of market rigging. Marsh also arrange professional indemnity insurance for the Law Society of Scotland through its notoriously corrupt Master Insurance Policy, itself linked to deaths in an independent report, and also provides the same insurance to Scotland’s Faculty of Advocates. Marsh are also used by many departments of the Scottish Government, local government and the private sector in Scotland for insurance coverage so if your dispute involves a profession insured by Marsh, a fair hearing in arbitration may be very hard to obtain.
Fergus Ewing, Jim Mather & Brandon Malone
nab create the arbitration business. The Scottish Arbitration Centre made the announcement of the appointment of ex judge Lord Dervaird, stating “A former Court of Session judge, Lord Dervaird has experience as an arbitrator and as counsel in numerous international arbitration proceedings. He wrote the National Report, Scotland, in the ICCA International Handbook on Commercial Arbitration in 1995. He is Emeritus Professor at the University of Edinburgh, and lectures on international arbitration at London (King’s College) and Strathclyde Universities.” No mention of exactly why Lord Dervaird was “a former Court of Session judge” was made in the Arbitration Centre’s media release, something potential clients may wish to know.
According to Scottish Law Reporter : The Scottish Arbitration Centre came about after a specific proposal for an arbitration centre was presented by Brandon Malone, solicitor advocate, on behalf of the Scottish Government’s steering group at a meeting last year between Fergus Ewing and representatives of the bodies authorised to act as Arbitral Appointments Referees (AARs) under the Arbitration (Scotland) Act 2010. Mr Malone, who also happens to be Chairman of the Scottish Arbitration Centre, has been involved with the SNP for many years and was the party’s “Assistant Spokesperson on Justice & Equality” in the late 90’s, famed among other things yet to be published, for writing letters in the Scotsman newspaper defending the legal profession and its stance on regulation.
The much hyped Arbitration (Scotland) Act 2010 pushed through by the SNP Scottish Government aimed to promote domestic & international arbitration under Scots Law and seeks to promote Scotland as a place to arbitrate disputes, legal & otherwise. In the over hyped campaign, the then Communities & Justice Minister Fergus Ewing claimed : “Scotland is now well positioned to be a 'world leader in the lucrative international arbitration scene”.
This latest move on the part of the SNP Scottish Government to create a new business dominated and almost exclusively controlled by Scotland’s closed shop legal services sector, comes on the heels of a FAILED campaign in 2008 by Justice Secretary Kenny MacAskill to encourage foreign firms & clients to bring litigation to Scotland. Wisely, international clientele heeded warnings on the perils of the Scottish justice system and stayed away from Mr MacAskill’s bid to attract litigants to the Scottish courts, a campaign which flopped within a few months.
Critics of the Arbitration (Scotland) Act 2010 and its passage through the Scottish Parliament point out the legislation was put through Hollyrood at the suggestion of the Scottish legal establishment to corner the arbitration market, seen as a lucrative business to be controlled before ‘outside elements’ took it over. The legislation seeks to increase the number of arbitrations under Scots Law while also increasing the level of business for arbitration advisers and the number of appointments of arbitrators based in Scotland, as long as they are agreeable to, or members of, or are under the control of the same organisations who are in partnership with the Scottish Arbitration Centre.
Former President Jamie Millar welcomed Law Society’s new business venture in the guise of independent arbitration. Speaking at the time of the Scottish Arbitration Centre’s opening, Jamie Millar, the former President of the Law Society of Scotland admitted the whole idea of Scottish arbitration was a Law Society sponsored operation. Mr Millar said : "At the request of our members, the Society campaigned for new arbitration laws and was actively involved in the passage of the Arbitration (Scotland) Act 2010 through the Scottish Parliament. We have long supported the idea of having a focal point to promote the value of arbitration to Scottish businesses so are delighted to see that the new opportunities the act presents are being seized, and that international arbitrations are being encouraged to locate in Scotland."
The Faculty of Advocates were also keen to corner lucrative arbitration business. Alan Dewar QC, Treasurer of the Faculty of Advocates, welcomed the plan, saying : "The Faculty of Advocates is pleased to have participated in the planning and preparations leading to today's launch of the Scottish Arbitration Centre. It looks forward to playing its part in promoting arbitration (both domestic and international) as a useful, cost-effective alternative to litigation. Quite apart from being a beautiful country to visit, Scotland is ideally placed to offer a first class arbitration service in terms of expertise, facilities and surroundings. The Faculty is delighted that the Centre is to be located at Dolphin House in the Old Town of Edinburgh, very close to the Faculty's base."
An official from one of Scotland’s consumer organisations said today the arbitration market in Scotland appears to be cornered & controlled by the legal profession and elements of other professions who themselves are the biggest causes of cases which end up requiring arbitration.
She said : “This is clearly an attempt by a few professions to control the arbitration market for themselves.”
She continued : “There is a danger here where consumers may be fooled into thinking that taking their case to arbitration is a faster, cheaper way of obtaining a resolution to their problem rather than embarking on costly litigation in Scotland’s courts. However those same consumers may not be aware those who are in the arbitration market are backed by the same professions and even the same indemnity insurance companies they already have problems with. I would therefore advise consumers to view arbitration with a degree of suspicion otherwise they may end up being bitten twice.”
A client who contacted Diary of Injustice about a long running high value negligence case against an Edinburgh law firm has recently been urged by his own solicitors to take his case to arbitration instead of going to court. He was suspicious of the move and asked for advice.
He said : “My own lawyers now want me to take my case to arbitration instead of the Court of Session but I don't believe arbitration will reveal the extent of my solicitor’s negligence and how a large sum of money disappeared from my business. I want a ruling because my former lawyer is a thief and a liar. I also don't want my huge financial loss turned into a paltry settlement.The money is missing and it is my first lawyer’s fault, it should be repaid and he should be found out in court.”
He continued : “I wondered why this sudden rush after my own lawyers worked on my case for three years and said I had a good chance of winning. After I found out the Law Society of Scotland were involved in the arbitration scheme and that it has something to do with the Master Policy insurers who are the defenders in my court action, I asked my lawyer who very reluctantly confirmed the facts. He admitted they were all tied up with the same insurers. I will be staying well away from this so-called arbitration, thanks.”
A Scottish Courts insider said today it would be foolhardy for foreign litigants to come to Scotland on the back of claims of legal expertise which do not exist.
He said : “If the Scottish Government wish to attract litigation or arbitration to Scotland they should first address the important recommendations raised by Scotland’s Lord Justice Clerk, Lord Gill in the Civil Courts Review to ensure Scots civil law is fit for purpose. Currently it is not and we now have a situation where the Scottish Government would rather rush through legislation to suit the ends of business & vested interests than reform the civil justice system upon which the likes of civil litigation & arbitration depends.”
Whether you are a company, or an individual, make sure you know the full facts before becoming involved in the Scottish version of arbitration, which more often than not is controlled & financially supported by the same industry or profession you case or dispute involves. Disputes arbitrated by vested interests do not guarantee a fair hearing, rather they guarantee only an unfair outcome.
If you are being pushed into arbitration in Scotland by professionals who themselves stand to make a lot of money out of it, or perhaps want something covered up while making sure you don't really get the full measure of what a court ruling will provide, stay away from it. Just remember which particular industries & self regulators control the Scottish arbitration market, a state of affairs which clearly makes Scottish arbitration nothing less than a World Class Disaster.
Background of Fettesgate :
Probe into gay justice scandal was itself discredited after further newspaper allegations. Fettesgate was the term given to a major scandal involving the Lothian and Borders Police force in the 1990s, from its Fettes Avenue headquarters near Fettes College in Edinburgh.The "Fettesgate scandal", as the incident was quickly called, began in the early hours of 19 July 1992, when burglars spent three hours in the Fettes headquarters of the police force. The break-in, through an unsecured window of the Scottish Crime Squad’s ground-floor offices in the HQ building, led to several confidential documents being stolen and Animal Liberation Front slogans being sprayed on the walls.
Many claimed Police were directed to arrest journalists to cover up scandal in the judiciary. Two journalists who reported on the incident after receiving tip-offs were arrested; Alan Muir, a reporter for The Sun, wrote a story based on an anonymous telephone call on the day of the incident, and was detained for six hours, and Ron McKay, a journalist for Scotland on Sunday found documents after another anonymous call six days later. When he wrote a story based on the documents, he was arrested at dawn, while at his girlfriend's house in Chatham, Kent. He was held overnight, and charged with reset, the crime under Scots law of receiving stolen property. The charges were dropped six months later. The stolen documents concerned the police's use of "telephone metering"; recording the destination and duration of suspects' telephone calls, without listening in on them. Although this was regarded as legal, the controversy led to a debate about privacy and what safeguards were needed regarding information gathered in this way.
Lothian & Borders Police were branded incompetent and Animal Liberation Front were blamed to take heat off scandal hit judiciary. The theft of such sensitive material from what should have been such a secure place, under the very noses of the police, led to questions being asked about the competence of the Lothian and Borders force to take charge of the European summit in Edinburgh later that year. It transpired that the Animal Liberation Front had not been involved in the break-in. The chief constable later admitted that the treatment of Mr McKay was tactless and apologised to the editor of Scotland on Sunday.
Scots judiciary & Police were thrown into significant disrepute by gay conspiracy allegations. Nobody has yet been charged with the break-in, leading some journalists who have covered the story to believe that the burglar's identity (allegedly a police informer) is known to the police, but that they fear he might embarrass the force in court. The return of the sensitive files was allegedly the result of senior detectives reaching an immunity deal with a man close to the city’s gay criminal underworld. An internal report is believed to have been completed by the police force on the matter, but has never been released to the public.
In a typically Scottish move, an investigation & subsequent report was written by members of the Scots legal establishment on the Fettesgate allegations, clearing everyone That report, widely disputed & discredited since its publication, can be read online or downloaded here : the report on an inquiry into an allegation of a conspiracy to pervert the course of justice in scotland by WA Nimmo Smith QC & JD Friel