Having reviewed all the exiting case law, both sides of the border, the Inner House adopted the following as the reasonable test for severability: “In considering whether a decision which is partially ultra vires of the adjudicator can be severed and the valid part enforced, the correct approach in our opinion is that the court should make the assumption that the parts of the decision that are invalid, for example because the dispute had not crystallized, did not exist. On that basis, it should then consider whether the remainder of the decision can be enforced without its being tainted by the invalid part of the decision.” To the extent that there was some overlap, the court would consider whether the reasoning in the ultra vires part of the decision affected the adjudicator’s conclusions in the intra vires part to anymaterial extent. The greater the overlap, the more likely there will be an influence. The court also held that the parties to an adjudication had agreed to honour the award including the award as it might be revised by the court on enforcement. In this case severance was possible and appropriate and the Inner House upheld the commercial judge’s order as to the award as revised by the order of the court.
In considering case law on severance in England, the court noted there were marked differences of judicial opinion as to whether severance was possible where there was a single dispute [11] Further the Scottish courts had traditionally adopted the approach of basing legal reasoning on principle rather than mere adherence to precedent. On the critical question of the extent to which and the basis on which a court may enforce an adjudicator’s award where part of that award was outside the adjudicator’s jurisdiction because the dispute purportedly considered in that part had not crystallised, the Inner House was in agreement with both the commercial judge’s decision and his reasons. Looking at all the cases on severance, the courts had regard to the substance of the underlying dispute, rather than the question of whether, formally, it could be classified as a “single dispute” case or a case involving multiple disputes. In the opinion of the Inner House, this was clearly correct; indeed the distinction between a single dispute and more than one dispute frequently turned on how claims are classified rather than anything going to their underlying substance. There was no blanket ban on severance simply because there was a single dispute albeit it might well be more difficult to show that what remained was not tainted by the part that was without the adjudicator’s jurisdiction.
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