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Part 2 Examination

It is assumed that candidates have passed (or been exempted from) the Part I Examination.

This syllabus is not designed to supply or augment the knowledge required for the application of arbitration to the practice of any particular profession or trade.

The Examination will comprise two papers:

  • Paper A
  • Paper B

Paper A: Contract, Delict & Evidence

The paper will be for three hours and will consist of six questions.

Two out of three questions will be from Sections A, B, C and D below;

Two out of three questions on Contract;

One out of two questions on Delict; and

One out of two questions on Evidence.

To achieve a pass a candidate must gain at least 55%.

Aims

A course of study on this syllabus should:

  • Provide a sound understanding of the nature of law
  • Provide an appreciation of the role of law in society
  • Provide a broad understanding of the various branches of law in order to give a fuller picture of the role of law
  • Provide a knowledge of the sources of law, in particular the common law and the law of arbitration including statutes and cases, and how these are applied to the determination of disputes
  • Develop an analytical and critical approach to the application of legal principles

Examination Objectives

Candidates are required to demonstrate:

  1. A knowledge of legal principles as defined in the syllabus, including issues of current legal concern
  2. An understanding of legal information and concepts, and the ability to identify the appropriate legal processes in different contexts
  3. An ability to evaluate legal principles, information and concepts defined in the syllabus
  4. An ability to analyse information, select appropriate legal principles and to apply these in a reasoned manner in order to draw legal conclusions
  5. An ability to organise and present information, ideas descriptions and arguments clearly and logically, using legal but non legalistic terminology correctly and in good English

Syllabus Content - For Paper A

Section A - The Nature of Law

  • The principal legal theories
  • Nature and origins of law
  • Legal reasoning and analysis

Section B - The Effect of the Law on the Individual

  • Rights, duties, liabilities and privileges
  • The basis of liability
  • Remedies for maladministration; judicial review; the role of ombudsmen
  • The concept of legal personality and corporate liability

Section C - The Sources of Law

  • Scots Law
    - Legislation, Precedent and Common Law
  • English Law and practice
  • European Community Law and Union Law

Section D - Law Enforcement and Administration

  • The difference between civil and criminal law
  • Dispute settlement: formal and informal methods: the Courts; tribunals; arbitration, adjudication, expert determination; mediation and conciliation
  • The role of the lay person in the administration of justice: e.g. Justices of the Peace, juries, tribunal members, arbitrators, adjudicators and independent experts

Contract

  • Formation of Contracts
    - Simple
    - Deeds
    - Oral
    - Offer and acceptance
    - Intention to create legal relations
    - Capacity
    - Contracts uberrimae fidei
  • Terms of Contract
    - Representations
    - Conditions and warranties
    - Fundamental terms
    - Implied terms
    - Exclusion clauses
  • Interpretation of Contracts
    - Intention of the parties
    - Background facts
    - Rectification
  • Third Party involvement in contracts
    - Ius quaesitum tertio
    - Assignation/Novation
    - Sub-contracting
  • Prescription and Limitation
    - Statutory
    - Contractual limitation
  • Quasi-contracts
    - Restitution
    - Quantum meruit
  • Remedies for breach of Contract
    - Interdict
    - Specific implement
    - Damages - general and special damages, liquidated and unliquidated damages, penalties
    - Quantification of loss
    - Mitigation of loss
    - Remoteness of damage
    - Set-off
    - Retention

Delict

  • Essentials of delict
    - Legal duty
    - Physical or mental damage
  • Liability in delict
    - Personal liability
    - Vicarious liability
  • Defences to liability
    - Novus actus interveniens
    - Contributory negligence
    - Prescription
    - Statutory authority
  • Remedies
    - Interdicts
    - Damages
    - Negligence
    The duty of care
    Donoghue v Stevenson and later developments
    Negligent misstatement
    - Delict relating to land
    Nuisance
    Trespass

Evidence

  • Definitions
  • The purpose of evidence
  • Standard and burden of proof
  • Types of evidence
  • Admissibility of evidence
  • Methods of proof
  • Hearsay
  • The role of the expert witness
  • Civil Evidence (Scotland) Act 1988

Paper B: Law of Arbitration

This paper will be three and a half hours and will consist of 7 questions, of which candidates must answer 5.

To achieve a pass a candidate must gain at least 55%.

Aims

A course of study based on this syllabus should:

  • Provide an understanding of the general principles of arbitration law, practice and procedure
  • Provide a knowledge of the sources of arbitration law including the common law, statutes and cases and how these are applied
  • Develop an analytical and critical approach to the application of arbitral principles

Examination Objectives

Candidates should be able to demonstrate:

  1. Knowledge of arbitral principles as defined in the syllabus
  2. Understanding of good practice and procedure
  3. An ability to evaluate arbitral rules, information and concepts defined in the syllabus
  4. An ability to analyse information, select appropriate rules and procedures and apply these fairly
  5. An ability to organise and present information, ideas, descriptions and arguments clearly and logically, using appropriate terminology, taking into account the use of grammar, punctuation and spelling.

Syllabus Content - For Paper B

Section A - Arbitration in the Context of Alternative Methods of Dispute Resolution

  • Arbitration
  • Adjudication
  • Expert determination
  • Mediation
  • Conciliation
  • Ombudsman

Section B - Arbitration Law

  • The Arbitration Agreement
    - Articles of Regulation 1695
    - Arbitration (Scotland) Act 1894
    - Administration of Justice (Scotland) Act 1972
    - Law Reform (Miscellaneous Provisions) (Scotland) Act 1990
    - Arbitration by order of the Court
    - Statutory Arbitration
    - Parties to an agreement
    - Execution, amendment, enforcement, revocation
  • Terms of agreement
    - Subject matter
    - Agreement after dispute arises
    - Administered and ad hoc arbitrations
    - Exclusion agreements
    - Consumer agreements
  • Appointment of arbitrators
    - By parties
    - By appointing authority
    - By Court
    - Sole arbitrator
    - Oversman
    - Remuneration
    - Revocation of authority
    - Removal
    - Replacement
    - Immunity
  • Powers and duties of arbitrators
    - Jurisdiction
    - General duties
    - Statutory powers
    - Power to award damages
    - Power to award expenses
    - Difference between valuer and arbitrator
    - Consolidation and concurrent hearings
    - Termination of authority
    - Resignation
  • Powers of the Courts
    - Definition of Court
    - Sist of legal proceedings
    - Extension of time to begin
    - Making and revoking appointments
    - Removing arbitrator
    - Peremptory orders
    - Recovery of documents etc. under specification
    - Attendance of witnesses
    - Orders and injunctions
    - Expenses
    - Arbitrator's fees
    - Enforcement of Award
    - Challenging the Award
    - Stated case on a point of law

Section C - Arbitration Practice and Procedure

  • Preliminary Proceedings
    - Clerk to the Reference
    - Assessors
    - Preliminary meetings
    - Managing the proceedings
    - Procedural meetings and applications
    - Interlocutors
    - Pleadings, statement of claim, counterclaim, answers and adjustments
    - Open and Closed records
    - Productions
    - Agreement of facts and figures
    - Time and place of hearing
  • The Hearing
    - Conduct of proceedings
    - Preliminary issues
    - Legal debates
    - Representation of the parties
    - Examination of witnesses
    - Evidence on oath or affirmation
    - Amendment of pleadings
    - Experts, legal advisers, assessors
    - Offers to settle (tenders)
    - Ex parte proceedings
  • Proceedings after the Hearing
    - Time for making the Award
    - Form of Award
    - Essentials of an enforceable Award
    - Proposed findings
    - Reasons
    - Interim or part Awards
    - Agreed Awards
    - Interest
    - Expenses of the Parties
    - Arbitrator's and Clerk's expenses
    - Registration in Books of Council and Session
    - Specific implement or performance
    - Enforcement
    - Reduction of Award
  • Arbitrations on Documents only
  • The Scottish Arbitration Code 1999
  • Administered Arbitrations (Scheme arbitrations)
  • Arbitration Rules in use in Scotland
  • The UNCITRAL Model Law