Commentary on Sections Part 3 – Miscellaneous and general Section 35 – Arbitration
171.Section 35 lays down the procedures applicable in cases where the Act provides for disputes (other than those to which the Lands Clauses Acts apply42) to be settled by arbitration. The arbiter is to be agreed by the parties to the dispute or, failing agreement, by the President of the Institution of Civil Engineers. By subsection (3) the arbiter is entitled to obtain a ruling on points of law from the Court of Session. This is standard practice for resolving such disputes. It will cover disputes arising under sections 5, 9, 10, 11 and 29. These are all potentially matters of a technical nature for which arbitration is considered a more appropriate procedure than recourse to the courts.
172.Subsection (4) disapplies section 108 of the Housing Grants, Construction and Regeneration Act 1996 (c.53) and any regulations made thereunder so that the dispute resolution mechanisms contained therein do not apply in respect of a dispute arising under this Act (for which a mechanism is provided under section 35). There is an exception for any contract where a party other than the authorised undertaker is to construct or fund the works authorised by the Act (subsection (5)).