Choice of Seat Dictates Procedural Law

Braes of Doune Wind Farm (Scotland) Ltd. v. Alfred McAlpine Bus. Servs. Ltd., 2008 WL 678195, [2008] EWHC 426 (Queen’s Bench Div., Tech. & Constr. Ct.)

In this case an agreement to arbitrate selected the Arbitration Act 1996 as the applicable procedural law but stated that the seat of any arbitration was "Glasgow, Scotland," where the Act does not apply.  It was held that, construing the contract as a whole, the arbitration was seated juridically in England, with Glasgow serving as the location of the arbitral hearing.

The judgment confirms that, while procedural law will usually be dictated by choice of seat, the opposite is also true.  However, the judgment is also an object lesson in the importance of drafting dispute resolution provisions which are consistent with one another.  The judgment also clarifies that dicta in The Northern Pioneer (submissions on an application for leave to appeal should be capable of being read and digested by the judge in half an hour) are a guideline to practitioners, not a restriction on judges.

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