Douglas & Co. v. Stiven [1900] ScotLR 37_412 (02 February 1900)

Douglas & Co. v. Stiven [1900] ScotLR 37_412 (02 February 1900)

An arbitration clause referring to the 'customary manner of the timber trade' is valid and enforceable under the Arbitration (Scotland) Act 1894, as evidence established a prevailing custom of reference to two arbiters and an oversman, and such a clause is sufficiently certain for the court to enforce.

Citation
[1900] ScotLR 37_412
Parties
Pursuer: Douglas & Company; Defender: James Stiven
Jurisdiction
Scotland
Judgment Date
02 February 1900
Procedural Posture
Civil (contract/arbitration) / Interlocutory Appeal (reclaiming Note) on Arbitration Clause
Outcome
Action sisted (stayed) pending arbitration in terms of the contract; finding as to the customary manner of arbitration pronounced.
Legal Topics
Arbitration Clause Interpretation, Custom of Trade, Proof of Custom, Arbitration (scotland) Act 1894
Contract Law Arbitration Arbitration Clause Interpretation Custom of Trade Proof of Custom Arbitration (scotland) Act 1894

Case Brief

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Parties

Douglas & Company

Pursuer

James Stiven

Defender

Procedural Posture

Civil (contract/arbitration) / Interlocutory Appeal (reclaiming Note) on Arbitration Clause

Legal Issues

  1. 1 Whether a reference to arbitration 'in the customary manner of the timber trade' is sufficiently certain to be enforceable under the Arbitration (Scotland) Act 1894
  2. 2 What level of proof is required to establish a trade custom expressly referred to in a contract

Ratio Decidendi

An arbitration clause referring to the 'customary manner of the timber trade' is valid and enforceable under the Arbitration (Scotland) Act 1894, as evidence established a prevailing custom of reference to two arbiters and an oversman, and such a clause is sufficiently certain for the court to enforce.

Court Disposition

Action sisted (stayed) pending arbitration in terms of the contract; finding as to the customary manner of arbitration pronounced.

Orders

  • Find that the customary manner of settling disputes by arbitration in the timber trade is by each party choosing an arbiter, with power to appoint an oversman.
  • Sist the action until the matters in dispute have been determined by arbitration in terms of the contract.