Commentary on Sections Schedule 1 – Scottish Arbitration Rules Rule 46 – Court’s other powers in relation to arbitration Default
181.Rule 46 is a default rule so, if the parties agree, the court powers specified do not apply to a particular arbitration. Otherwise, the court has the same power in arbitration proceedings as it would have in ordinary civil proceedings. The rule retains the existing law and sets out a range of powers including making an order under section 1 of the Administration of Justice (Scotland) Act 1972 to order the inspection, photographing, preservation, custody and detention of documents and other property (including land) which appear to the court may be relevant to the arbitration proceedings.
182.Rule 46(2) provides that the court has these powers only on application by a party and if an application for an order is made after the arbitration has commenced, then the consent of the arbitrator is required unless the case is one of urgency. The arbitration may continue notwithstanding the application to the court.
183.Rule 46(4) applies rule 46 to arbitrations which have begun and to disputes which have or might arise, where an arbitration agreement provides for the dispute to be resolved by arbitration.
184.Rule 46(5) means that the rule does not affect the court’s powers under any rule of law or the tribunal’s powers (see in particular rule 35).