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Scots Law News

Document Cited authorities 6 Cited in Related
Vincent
Date01 May 2009
Published date01 May 2009
AuthorMacQueen Hector L,Wortley Scott
DOI10.3366/E1364980909001358
Pages185-193
<sec id="ss2"> <title>Business Experts and Law Forum report on Scots law

A Business Experts and Law Forum (BELF) set up by the Scottish Government to consider how high-quality legal and dispute resolution services might contribute to the Scottish economy and business reported on 3 November 2008: see http://www.scotland.gov.uk/Publications/2008/10/30105800/0. The report has many points of interest. The Justice Secretary set up the Forum “with a remit to see what could be done to enable and encourage businesses, so far as appropriate: to choose Scotland as the seat of their business and legal activities; to look to Scottish lawyers for their advice; and to look to the Scottish courts as their dispute resolution forum of choice.”

In its foreword, the report explains that:

Scotland's legal system and profession matters to our country's economic goals because:

the profession in itself contributes around £1bn a year to Scotland's economy;

high quality legal services are a key factor in a supportive business environment, particularly in encouraging firms to maintain head office functions in Scotland;

being able to resolve disputes as effectively as possible is an important contributory factor to success in many areas of business.

 “Paradoxically”, the report notes (para 1.2), “increasing harmonisation of Scots and English Law (driven, in part, by EU harmonisation) makes it more difficult to ‘sell’ Scots Law where there is a choice between the systems.” Furthermore

The procedural terms used by the Scottish courts are distinctive and historic, but arguably alienate those unfamiliar with Scots law. They may hinder the creation of an impression among businesses (both local and international) of the Scottish courts as modern, accessible and user-friendly. The fact that Scotland is an English language jurisdiction should give it a competitive advantage over many other international jurisdictions as a dispute resolution forum; retaining archaic procedural terminology could limit this potential advantage.

There is much else in the report to provoke thought; and it is worth noting with regard to dispute resolution and the attraction of business to Scotland that an Arbitration (Scotland) Bill was introduced to the Scottish Parliament on 29 January 2009 (available at http://www.scottish.parliament.uk/s3/bills/19-Arbitration/index.htm). While taking the anti-harmonisation point, Scots Law News notes that the European Draft Common Frame of Reference, published in its revised version in March 2009, is not very far from Scots contract law in content but contains a clear and thoroughly modern system of terminology.

 Pleural plaques law contrary to human rights and too expensive?

The Daily Telegraph for 9 November 2008 reported that insurers plan to challenge the Damages (Asbestos-related Conditions) (Scotland) Bill, which was passed by the Scottish Parliament on 11 March 2009 (see http://www.scottish.parliament.uk/s3/bills/12-Asbestos/index.htm), on the basis of the European Convention on Human Rights. It appears that the Association of British Insurers will argue that the Bill is not compatible with art 6 of the ECHR (right to a fair hearing) or art 1 of the First Protocol (property rights). But Telegraph correspondent Joshua Rozenberg is surely right to question the reasoning:

Since the Bill would merely restore the law in Scotland to what it had been before the law lords’ ruling – and still is, on a strict view of precedent – it is difficult to argue that the insurers are being deprived of a “fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. Similarly, it does not seem that being required to pay claims in Scotland that they would not have to meet in England and Wales is denying these companies the “peaceful enjoyment” of their possessions. It might just be possible to argue that it is not “in the public interest” to deprive them of their possessions – another requirement of Article 1, Protocol 1 – but this, too, seems a little far-fetched.

According to the Sunday Herald for 8 February 2009 there are also cross-border financial problems. Apparently Whitehall departments which would be likely to be liable for many of the claims that would be made once the Bill becomes law, such as the Ministry of Defence and the Department of Business Enterprise and Regulatory Reform, are refusing to say whether they would absorb that liability or expect to see funds to pay for it transferred from the Scottish Government. Their potential liability, running into many millions of pounds, arises from responsibility for such bodies as the Rosyth Naval Dockyard, British Shipbuilders and the British Coal Corporation. The nub of the problem seems to be an inter-government Statement of Funding Policy (available at http://www.hm-treasury.gov.uk/d/pbr_csr07_funding591.pdf) under which the Scottish Government pays for costs created by its legislation when these impact upon UK Government departments Do fifty, get one month less

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