Scottish Pubs Code Adjudicator: draft arbitration policy - guidance

Key steps in the process

This section provides an overview of the four main steps in the arbitration process.

Step 1: Making a referral for arbitration

To make a referral for arbitration, you must:

1. Complete and submit a referral for arbitration, and send it by email or post to the SPCA at the address on the referral form.

2. Send a copy of the form to your pub-owning business

3. Pay a fee of £250 this must be paid by a tied-pub tenant:

• at the time the referral is made
• by bank transfer (details for payment are on the referral form)

Your referral must include:

• details of the tenant, the pub-owning business and the tied pub
• the section of the Code under which the referral is made 
• a description of the dispute, including relevant dates

Once the referral form is received, we will consider whether the request is valid.  The SPCA will consider:

• further information; we may request further information and explanation, including the dates on which relevant actions were taken. In some cases, we may require a new arbitration referral form to be completed before taking further action
• SPCA remit; we may only consider relevant disputes about matters specified by the Tied Pubs (Scotland) Act 2021 and the Scottish Pubs Code
• fee payment; we cannot accept a referral from a tied-pub tenant until the fee of £250 is paid in full

The SPCA will write to both parties if the referral is accepted to:

• provide information about case management;
• confirm the details of any nominated representative for each party; and 
• provide details of the arbitrator assigned to the dispute – this will usually be the Adjudicator, but another arbitrator may be appointed in some cases

The SPCA will also write to you if your referral is not accepted.

Step 2: Case management and communication

The Adjudicator’s office will handle all day-to-day case management and communication.

All case management communication will be by email.  If you need alternative formats for communication, do advise the SPCA staff. The SPCA will only communicate with a single point of contact for each party: the named party or their nominated representative. Your nominated representative can be a solicitor, but doesn’t need to be. 

We will agree with both parties how information will be exchanged. Each party must copy all correspondence and evidence to the other party. This will be set out in a communication protocol. This agreement will include details such as an email address, designated for case communication to ensure all correspondence and evidence are consistently and securely exchanged between the relevant parties. 

We will send out information on what each party has to do at each stage of the arbitration process. This will be set out in a directions order. This will cover submission of documents and evidence and include a timeline. Each party will be asked to submit a full statement, providing full details of each aspect of their case. 

Step 3: The arbitration process

The arbitration will be conducted in accordance either with the rules regarding arbitration issued by the Chartered Institute of Arbitrators or (on nomination of the arbitrator) the Scottish Arbitration Rules or rules of another dispute resolution body.  The arbitrator will consider representations made by either or both of the Parties as to whether the arbitrator should exercise their discretion to nominate alternate procedure to the CIArb rules.

Any hearing that is required may take place online or in-person. In-person hearings will usually be held in Edinburgh, but can be arranged at other locations in Scotland.

In general, you may expect the following: 

• the arbitrator will make all case decisions, and the Adjudicator’s office will handle all day-to-day case management and correspondence
• the arbitrator will consider and resolve any issues arising during the arbitration process
• the arbitrator may send further case management correspondence, and request or agree to further meetings and hearings (telephone or in person) 
• the arbitrator may tell the parties how issues that arise are to be managed and can request expert/technical assistance  
• the arbitrator may call a case management meeting (telephone, on-line or in person), seek oral evidence, or invite or accept expert evidence by or on behalf of a party
• if an arbitration hearing is called, each party will be able to present its case and respond to the arbitrator’s questions, and witnesses will be able to give evidence and be cross examined by the other party

Step 4: The decision

Decision

The arbitrator will consider each party's case and reach a decision – known as an award. This sets out the findings of fact, interpretation of the relevant law, and any action to be taken.

The award is final and binding on the parties and can be enforced through the courts.

Each party must pay their own arbitration costs regardless of the outcome. A pub-owning business that is a party to an arbitration is liable to pay the arbitrator's reasonable fees and expenses if the arbitrator is the Adjudicator or a person appointed by the adjudicator. The Adjudicator may also, on application of the pub- owning business determine that the tenant is liable for some or all of the costs of the arbitrator’s reasonable fees and expenses. The Adjudicator may also hold a tied-pub tenant who is a party to the arbitration liable to pay the arbitrator's reasonable fees and expenses in circumstances where the tied-pub tenant’s submission of the dispute was found to be vexatious. 

If the parties settle or the claimant withdraws their claim before the arbitration process is completed this will usually lead to an agreed award which ends the proceedings and allows the case to be closed.

The Adjudicator will normally publish details of awards. We will ask both parties if they agree to publication. We can consider requests for confidentiality and/or redaction of certain information.

Appeals

The arbitration award can only be appealed on a narrow range of grounds. 

You should seek legal advice about appeals.