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Stockholm Arbitration Report (SAR) - (Individual Back Volumes)
Stockholm Arbitration Report (SAR) - (Individual Back Issue)
Preview Page SAR 2004 - 2
Subject Matters:
(1) The potential res judicata effect of the SCC Institute’s dismissal of
Respondent’s counterclaim, after the counterclaim had been
raised as part of an initial reply to the SCC Institute, but before
the referral of the case to the Sole Arbitrator.
(2) The proper law of the arbitration agreement, where the parties
expressly chose to apply English law to the substantive contract,
but did not make an express choice of law in respect of the
arbitration agreement, and the seat of the arbitration proceedings
was Sweden.
(3) Whether the requirement of “mutual consultations” in the
arbitration agreement was a condition precedent to the
jurisdiction of the Arbitrator, or a contractual provision to be
considered as part of the substantive arbitration proceedings, and
whether the condition had been satisfied.
Findings:
(1) The SCC Institute’s dismissal of Respondent’s counterclaim for
failure to pay the advance on costs should not operate as a legal
barrier, whether by the doctrine of res judicata, issue estoppel or
otherwise, to the Respondent’s ability to bring new arbitration
proceedings against the Claimant with respect to the original
subject matter of the counterclaim, in circumstances where the
counterclaim had been raised, but was dismissed before it was
referred to the Arbitrator for final determination.
(2) The Arbitrator found that the parties “impliedly chose” English
law to govern the arbitration agreement. The Arbitrator accorded
no weight to the fact that the parties expressly chose Sweden as
the seat of the arbitration, nor did the Arbitrator apply Sections 46
and 48 of the Swedish Arbitration Act 1999, which provide, in
such circumstances, that Swedish law should govern the
arbitration agreement.
(3) The possible non-compliance with the requirement of mutual
consultation in the arbitration agreement did not deprive the
Arbitrator of jurisdiction. It imposed a legally enforceable
obligation with which the Claimant had to comply before referring
the dispute to arbitration. The Arbitrator held that this obligation
had been satisfied.
