Although based in London, Corporate Blawg UK is very fond of Irn Bru, Edinburgh and Burns nights; and is never shy of Guinness, horse-racing or the Corrs. In fact, Corporate Blawg UK is so proud of its celtic neighbours, that it finds it necessary to do more than just mention Scots Law in a passing fashion (and Northern Ire. law at a later date).
Aye-ccordingly, below are a few examples of key commercial law differences between Scots law and English (and Welsh) Law. Comments on other significant differences in the company / commercial environment are most welcome:
- Deeds do not officially exist in Scotland, although Scots will often refer to trust, tax and pensions documents as Deeds. Neither does the English concept of "consideration" exist in Scots Law. Scots contract law concerns the enforceability of the unilateral or gratuitous promise, which is intended to be legally binding without the need for acceptance.
- Unless otherwise defined, in England "joint" means that each will be liable for the whole loss and "several" means that each will be liable for any loss arising from his own performance. In Scotland "Joint" means that each is liable pro rata as a proportion of the whole of the loss, and "several" means each is liable for the whole loss.
- In England "representations" and "undertakings" may produce different remedies under common law (and/or the Misrepresentation Act 1967), whereas there are no such separate remedies under Scots law. In Scots Law the term "warrants" will encompass both representations and undertakings.
- The concept of "full title guarantee" has no meaning in Scots law.
- Obligations cannot be assigned under English law, unlike Scots law were "assignations" may include obligations.
- Arbitration law is significantly different between the two jurisdictions.
A high level difference between Scots law and English law occurs in relation to the implementation of EU law. Once directives are adopted by the EU there is a period of time before those directives must be implemented in Member States. This allows Member States to conduct consultations and review their domestic drafts to be effective and germane with the other laws of the Member State.
For commercial and company law directives, the Department of Trade and Industry, or the Office of Government Commerce, will conduct consultations and reviews on behalf of the UK as a whole. The UK Government will adopt the final version proposed by its agency. The advantage for Scotland and Northern Irelandis that their own parliaments will conduct a further detailed review of the final draft regulations proposed for England & Wales. Since Scotland and Northern Ireland will come to this legislation with relatively fresh eyes (and national pride) their amendments nearly always improve its consistency and clarity. It is therefore common for EU legislation transposed into Scots law and Northern Ireland law to be better drafted than in England & Wales
This is analogous to the marketing situation whereby the business behind the market leader reaps certain advantages unavailable to the leader (like anarchists targeting MacDonalds rather than Burger King). Scotland is like Burger King.