ICCA 2020 Edinburgh


Arb-med-arb in 13th Century Scotland

Incholm Abbey v William de Hercht - Arbiters, Arbitrators and Amicable Compositors in the Late Middle Ages

Written by Brandon Malone, Solicitor Advocate and Arbitrator, Brandon Malone & Company, Chairman, Scottish Arbitration Centre

The Longshanks arbitration (1290)

In the year 1290, the death of Margaret the Maid of Norway, heir to the Scottish throne, brought Scotland to the brink of civil war. John Balliol and Robert Bruce each staked their claim as rightful successor, their competing claims based on the strength and proximity of their familial connection to William the Conqueror.

Unable to reach agreement, and in an attempt to avoid armed conflict, they turned to an arbiter to resolve the conflict: Edward I (‘the Longshanks’) of House Plantagenet, King of England, subsequently known by the sobriquet ‘the Hammer of the Scots.’ This turned out to be a bad idea (see aforementioned sobriquet).

Whilst it is fair to say that the rules of natural justice were not as well developed in the thirteenth century as they are now, and that there were no real guidelines for arbitrator conduct, Edward took improper advantage of his appointment, demanding that he be appointed as judge of the matter as the acknowledged overlord (rather than simply an arbiter in the dispute between Bruce and Balliol) and putting himself forward as the rightful King of the Scots, which even then counted as a conflict of interest.

This was not a good advertisement for arbitration, and the guardians of Scotland might be criticised for being so naive as to invite the Longshanks to exercise any sort of jurisdiction. However, arbitration took a number of different forms in Scotland at the time, and it is only fair to look at the matter in context.

The Inchcolm Abbey arbitration (1240)

These distinctions of form are illustrated in the earlier case of Inchcolm Abbey v William de Hercht, which dates from 1240.

Inchcolm is an island that sits in the Firth of Forth between Edinburgh and Fife. A boundary dispute regarding the island’s Abbey arose and was referred to arbitration. The arbiters were unable to reach a decision and advised the parties to submit to amicable composition. The parties agreed, and the arbiters took on the role of amicable compositors, eventually resolving the dispute.

The facts of the case are not as interesting as the regime under which it was conducted. At the time, it was common to confer a multiple jurisdiction upon the tribunal – to act as arbiters, arbitrators, and amicable compositors – to proceed in the way they considered most appropriate.

At the time of the Inchcolm Abbey case, arbiters were required to determine the dispute according to the law. Arbitrators, on the other hand, had a great deal more freedom to consider fairness and equity and were not bound by procedure. Amicable compositors were expected to act more like mediators, facilitating a settlement. By conferring jurisdiction to act as arbiter, arbitrator, and amicable compositor, the parties gave the tribunal the maximum procedural flexibility -- in a kind of medieval arb-med-arb.

The Arbitration (Scotland) Act 2010

Eventually, the roles of arbiter and arbitrator became confused and legalistic arbitration under an arbiter became the only real option (although the historic term ‘arbiter’ was only replaced with ‘arbitrator’ with the introduction of the Arbitration (Scotland) Act 2010)).

Under the modern law, the Inchcolm Abbey tribunal’s failure to reach a decision would be regarded as a serious irregularity.

The law has also moved on in its approach to the division of roles. If the parties so agree, an arbitral tribunal can decide a case on the basis of on the basis of general considerations of justice, fairness or equity, rather than strictly according to the law, but the arbitrator does not have the power to act as a mediator or conciliator, and risks a challenge on natural justice grounds if a settlement is suggested to the parties.

Of course in some parts of the world, parties are quite accepting of a tribunal switching between adjudicative and facilitative roles, and as hybrid forms of dispute resolution gain increased currency it is interesting to consider a similar system operating successfully in medieval Scotland.

Appeal to the Pope

As for Bruce, Balliol and the Longshanks, ultimately, King Robert the Bruce (grandson of the original party to the dispute) had to apply to the ultimate court of appeal at the time -- the Pope – in the Declaration of Arbroath to settle the matter for good. An appellate court for international arbitration, however, is a subject for another article.

(This article was first published in ICCA Newsletter # 12, August 2016)    

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