SCC ARBITRATION UNDER THE 2010 SCC RULES
The 2010 SCC Rules provide that an SCC Arbitration starts with the filing of a Request for Arbitration and payment of a Registration Fee (Articles 2, 3). Arbitration is commenced on the date when the SCC Secretariat receives the Request for Arbitration (Article 4).
- The request for arbitration shall include (1) the names, addresses, telephone and facsimile numbers and emails of the Parties and their counsel, (2) a summary of the dispute, (3) a preliminary statement of the relief sought by the Claimant, (3) a copy or description of the arbitration agreement or clause under which the dispute is to be settled, (4) any comments on the number of arbitrators and the seat of arbitration, (5) if applicable, the name, address, telephone number, facsimile number and email address of the arbitrator appointed by Claimant.
- The Request for Arbitration and annexes should be sent to email@example.com
- The Registration Fee amounts to EUR 2.000 (VAT not included) for the SCC Rules and EUR 1.500 (VAT not included) for the Rules for Expedited Arbitrations. A company with a seat outside Sweden does not pay VAT on SCC registration fees (Appendix III – Schedule of Costs)
The registration fee must be paid to the Danske Bank Stockholm:
Account No. (IBAN): SE8612000000013423600950
VAT No. SE556095795201
Once the SCC Secretariat receives the Request for Arbitration, the Secretariat sends a copy of the Request for Arbitration to Respondent in the SCC Arbitration with a time period set within which Respondent submits an Answer to the SCC. The Secretariat sets this time period and is free to extend any time period which has been set for a party to comply with a particular direction. The Tribunal can proceed with the Arbitration despite Respondent’s failure to provide an Answer (Articles 5, 7).
The Secretariat sends a copy of the Answer to Claimant which is given an opportunity to submit comments on the Answer (Article 5).
The Parties can choose that the dispute will be solved by one or three arbitrators. Where the Parties have not agreed, the Arbitral Tribunal consists of three arbitrators for SCC arbitration (Article 12).
- Where the Arbitral Tribunal consists of three arbitrators, each party appoints one arbitrator and the chairman is appointed by the SCC Board, unless the Parties agree otherwise (Article 13.3). The award and all decisions made will be made by a majority, failing which it will by made by the chairman (Article 35.1).
- Where the Arbitral Tribunal consists of a sole arbitrator, the Parties can jointly appoint him. If the Parties fail to agree within a period of 10 days, the SCC Board will appoint the arbitrator (Article 13.2).
- The nationality of the sole arbitrator or of the chair of the Arbitral Tribunal must be different from the Parties, unless the Parties have agreed otherwise or it is deemed appropriate by the Board (Article 13.5).
- The SCC does not have a fixed panel of arbitrators and the Parties are free to appoint any person of any profession as long as this person is neutral in relation to the dispute, the Parties and the counsel involved.
- Every arbitrator must be impartial and independent. Each arbitrator signs a statement of impartiality and independence when he/she is appointed, which will be sent to the Parties and other arbitrators (Article 14).
A Party can challenge any arbitrator by submitting a written statement to the Secretariat setting forth the reasons for the challenge within 15 days from when the circumstances giving rise to the challenge became known (Article 15.2). Such circumstances include justifiable doubts as to the arbitrators’ impartiality or independence or if he/she does not possess the qualifications agreed by the parties (Article 15.1). Challenges are rarely successful.
Each party pays half of the Advance on Costs unless separate advances are determined. The Advance on Costs is determined by the Board and corresponds to the estimated amount of the Costs of Arbitration (Article 45).
The Secretariat refers the case to the Arbitral Tribunal when the Arbitral Tribunal has been appointed and the Advance on Costs has been paid (Article 18).
The Arbitral Tribunal will conduct the arbitration in any manner it considers appropriate, subject to the SCC Rules, in an impartial, practical and expeditious manner, giving each party an equal and reasonable opportunity to present its case (Article 19). The Arbitral Tribunal may conduct hearings and deliberate at any place it considers appropriate (Article 20).
The Parties determine the seat of the SCC arbitration. In the absence of such agreement, the SCC Board determines the seat of arbitration (Article 20.1). Stockholm is frequently used. The award is deemed to have been made at the seat of arbitration (Article 20.2).
The Parties also determine the language of the Arbitration, failing which the Arbitral Tribunal determines it in light of all relevant circumstances, and gives the Parties an opportunity to submit comments (Article 21.1).
The Parties further determine the law applicable to the merits of the dispute. In the absence of such agreement, the Arbitral Tribunal shall apply the law it considers to be most appropriate (Article 22.1).
After the referral of the case to the Arbitral Tribunal, in consultation with the Parties, the Arbitral Tribunal establishes a provisional timetable for the conduct of the Arbitration and sends a copy to the Secretariat (Article 23).
Within the period determined by the Arbitral Tribunal, Claimant submits a Statement of Claim which includes the specific relief sought, the material circumstances and documents on which Claimant relies (Article 24.1).
Within the period determined by the Arbitral Tribunal, Respondent submits a Statement of Defence which includes any objections concerning the existence, validity or applicability of the arbitration agreement, a statement whether Respondent admits or denies the relief sought, the material circumstances on which Respondent relies, any counterclaim or set-off and the documents on which Respondent relies (Article 24.2).
A private hearing is held if a Party requests it or if the Arbitral Tribunal deems it appropriate and the Arbitral Tribunal will determine the date, time and location in consultation with the Parties (Article 27).
- Before a hearing is held, the Tribunal may order the Parties to identify each witness or expert they intent to call and specify the circumstances intended to be proved by each testimony (Article 28.1).
- Testimonies can be submitted in the form of signed statements (Article 28.2)
If Claimant fails to submit a Statement of Claim, the Arbitral Tribunal may terminate the proceedings if Respondent has not submitted a counterclaim (Article 30.1).
If Respondent fails to submit a Statement of Defence (or fails to appear at a hearing), the Arbitral Tribunal may proceed with the Arbitration and make an award (Article 30.2).
The Arbitral Tribunal declares the SCC arbitration proceedings closed when it is satisfied that the Parties have had a reasonable opportunity to present their cases (Article 34).
A final award must be made within 6 months from the date when the case was referred to the Arbitral Tribunal but extensions may be granted for complex cases. Statistics from the SCC Institute show that the average duration of the Arbitration is 12-14 months (from the time the case is referred to the Arbitral Tribunal until it is closed).
An award is final and binding on the Parties which will undertake to carry it out without delay (Article 40). The final award must be made in writing and state the reasons upon which it is based (Article 36.1), and must be signed by the arbitrators. The Arbitral Tribunal delivers a copy of the award to the SCC and to the Parties without without delay (Article 36.4).
Within 30 days of receiving an award, a Party may request that the Arbitral Tribunal correct a clerical, typographical or computational error in the award, provide an interpretation of a specific part of the award or make an additional award on claims presented in the Arbitration but not determined in the award (Articles 41, 42).
ADDITIONAL NOTES ON SCC ARBITRATION UNDER THE 2010 SCC RULES
Once the case has been referred to the Arbitral Tribunal, the arbitrators can grant interim measures (e.g. establishment of security over assets and preservation of documents). Interim measures can be granted by an Emergency Arbitrator before the Arbitral Tribunal has been constituted (Appendix II – Emergency Arbitrator). Emergency Arbitrators have always been appointed within the given time limit of 24 hours.
- The Emergency Arbitrator provisions do not intend to prevent a Party from seeking the assistance of local courts but rather provides them with an additional tool.
- The rules concerning the Emergency Arbitrator are opt-out rules which will apply unless the Parties expressly agree otherwise.
The SCC Institute does not scrutinize the draft award because it functions solely as an administrative body and is not a court of arbitration. Therefore, the SCC Institute is not involved in the proceedings once the case has been referred to the Arbitral Tribunal, unlikethe ICC Court.
The SCC and the Arbitral Tribunal must maintain the confidentiality of the arbitration and the award but the Parties are not obliged to keep the arbitration confidential (Article 46 and Swedish Supreme Court case Bulbank). Therefore, it is best for the Parties the expressly provide for a duty of confidentiality concerning the arbitration proceedings.
The current SCC 2010 Arbitration Rules apply to any arbitration commenced on or after 1 January 2010.
The Costs of Arbitration consist of the Fees to for the Arbitral Tribunal, the Administrative Fee to the SCC and the expenses of the Arbitral Tribunal and the SCC (Article 43.1). The fee to the Arbitral Tribunal is based on the amount in dispute (i.e. the total value of the claims, counterclaims and set-offs).
- The fee to the Arbitral Tribunal is based on the amount in dispute (i.e. the total value of the claims, counterclaims and set-offs).
- In light of the outcome of the case and other relevant circumstances, the Arbitral Tribunal apportions the Costs of Arbitration between the Parties (Article 43.5) and may also order one Party to pay any reasonable costs incurred by another Party.
- The Parties can anticipate the costs of the arbitration using the Calculator at http://www.sccinstitute.com/dispute-resolution/calculator/
For minor disputes involving a smaller amount in dispute, the SCC offers an Expedited Arbitration Procedure (fast track procedure) with a final award to be made within three months. In the Expedited Arbitration Procedure, the Arbitral Tribunal is composed of one sole arbitrator and the Parties are given the opportunity to appoint the arbitrator together within 10 days, failing which the arbitrator is appointed by the Board.
The Parties can agree to engage in mediation at any stage of the arbitration and request that the arbitration be stayed.
- The mediator will however not be able to act as arbitrator in the same matter unless the Parties agree otherwise.
- If the Parties reach a settlement before the final award is made, the Arbitral Tribunal may record the settlement in the form of an award (Article 39.2).