SCC Case 7/2005 - Chapter 11 - SCC Arbitral Awards: 2004-2009

FOREWORD

ABOUT THE EDITORS

I. SCC CASE 60/2000
SUBJECT-MATTERS:
(1) Carrier's vicarious liability under the International Convention on Carriage of Goods by Road (CMR) of 1956; burden of proof.
(2) Carrier's wilful misconduct under the CMR, standard of evidence. Articles 29.1 and 29.2 CMR.
Observations by Lars Gorton
Observations by Johan Schelin

II. SCC CASE 74/2000
SUBJECT-MATTERS:
(1) Transfer of arbitration agreement. The meaning of an "express written consent" where the contract provides that assignment of the agreement or any part thereof requires the consent of the other party.
(2) Validity of an arbitration clause under which one of the parties only had the right of choice to file its claims either before an arbitral tribunal or before a national court, and the other party could opt for arbitration only.
Observations by Pekka Puhakka & Johan Pråhl
Observations by Karl Johan Dhunér

III. SCC CASE 124/2000
SUBJECT-MATTERS:
(1) Parent company guarantee; elements of interpretation.
(2) Character of guarantee -- independent or accessory?
Observations by Talbot Lindström

IV. SCC CASE 12/2002
SUBJECT-MATTERS:
(1) Prima facie decision of jurisdiction of the Arbitration Institute of the Stockholm Chamber of Commerce (SCC Institute).
(2) The law applicable to the transfer of the arbitration agreement.
(3) Assignment of contract; validity of the arbitration clause when the assignee has not notified the remaining contract party of the assignment.
Observations by Ivan Zykin
Observations by Juan Carlos Landrove

V. SCC CASE 24/2002
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.
Observations by Mary O'Connor
Observations by John Gatenby & Kate Menin

VI. SCC CASE 49/2002
SUBJECT-MATTERS:
(1) Interpretation of a Bilateral Investment Treaty.
(2) Whether the Claimant had an asset which constituted an investment under the Bilateral Investment Treaty.
(3) Period of limitation under the Bilateral Investment Treaty.
(4) Costs incurred by the Respondent for legal representation.
(5) Apportionment of the arbitration costs as between the parties.
Observations by Sarah François-Poncet & Caline Mouawad

VII. SCC CASE 71/2002
SUBJECT-MATTERS:
(1) Letter of credit -- whether the paying bank is entitled to refuse to release the money when the documents presented by the seller contain some discrepancies with the conditions in the letter of credit.
(2) Letter of credit -- in case the issuing bank does ask for a waiver of discrepancies from the buyer, whether the buyer is obliged to give a waiver.
(3) Buyer's obligation to take delivery and make payment -- after the expiry of the letter of credit.
(4) Evidence -- whether Claimant can submit new evidence outside Europe and there are sometimes difficulties with the communications.
Observations by Christina Ramberg
Observations by Ping Liu

VIII. SCC CASE 30/2003
SUBJECT-MATTERS:
Issue of jurisdiction. Did Claimant and Respondent sign the arbitration agreements and their capacity as agents under United Arab Emirates law?
Observations by Ania Farren

IX. SCC CASE 143/2003
SUBJECT-MATTERS:
(1) Whether an entity that was not named as a respondent in the Request for Arbitration and therefore did not take part in the formation of the arbitral tribunal may be counted as a respondent in the arbitration.
(2) Whether, by application of the alter ego doctrine to "pierce the corporate veil" of one entity, an arbitral tribunal may exercise jurisdiction over another entity that is not a party to the arbitration.
(3) Whether an assignment merely of the proceeds from a cause of action, or rather an assignment of the cause of action itself, is effected by the following language: "The Assignor assigns to Assignee the right title of interest and sums of money recovered of the Defendant in the proposed action [Assignor] -v- [Defendants]."
(4) Whether an aggrieved entity's cause of action against a state and against a corporation designated by the state to administer the outstanding debts of a company liquidated by state decree is a dispute that would fall within the scope of an arbitration clause in a contract between the aggrieved entity and the company liquidated by state decree.
(5) Allocation of costs.
Observations by David Goldberg & Gordon Blanke

X. SCC CASE 90/2004
SUBJECT-MATTERS:
(1) Truncated Tribunal -- Subsequent to the oral hearing the SCC informs the arbitral tribunal that the arbitrator appointed by the claimant had resigned and could not be reached.
(2) Interpretation of an international purchase agreement under the CISG.
Observations by Teresa Giovannini

XI. SCC CASE 7/2005
SUBJECT-MATTERS:
(1) Jurisdiction under an arbitration clause not expressly referring to the SCC Institute
(2) Failure of respondent to appear (procedural default)
(3) Applicable substantive law
(4) No oral hearing
(5) Application sua sponte (ex officio) of contractual penalty provisions to claimant’s potential detriment
(6) Recovery of arbitration costs when claim partly withdrawn
Observations by Patrik Schöldström

XII. SCC CASE 10/2005
SUBJECT-MATTERS:
(1) Jurisdiction
a) Pathological arbitration agreement lacking a clear identification of any arbitration institution
b) Two-tier clause (negotiation before arbitration)
c) Whether entry into a new arbitration agreement before arbitrating the dispute was necessary
(2) Arbitrability -- The arbitration agreement was allegedly against public policy in the respondents' country.
(3) Were the claimant and the second respondent parties to the arbitration agreement?
(4) Applicable law as to the arbitration agreement.
(5) Applicable law as to the substance of the dispute.
Observations by Phillip Capper

XIII. SCC CASE 21/2005
SUBJECT-MATTERS:
(1) Has the buyer's notice of termination of a sale of goods contract governed by Swedish law been served in a timely fashion (within "a reasonable period of time")?
(2) Has the seller, who negotiated with the buyer "without prejudice", forfeited its right to object to the purported untimely notice of termination?
(3) Could the limitation of liability clause be modified with the application of Section 36 of the Swedish Act on Contracts and thereby entitle the buyer to consequential damages since the clause purportedly was unfair?
(4) Could the Court of Appeal set aside the award on the basis that the objection to the purported untimely notice of termination was raised against the seller's better judgment?
Observations by Torgny Håstad
Observations by Pontus Ewerlöf

XIV. SCC CASE O53/2005
SUBJECT-MATTERS:
The law applicable to determining the jurisdiction of the Arbitral Tribunal when Respondent in liquidation invokes non-arbitrability inter alia under its national legislation.
Observations by Carita Wallgren-Lindholm and Mari Antila
Observations by Eric M. Runesson

XV. SCC CASE 33/2007
SUBJECT-MATTERS:
Applicable law.
Observations by Therese Isaksson and Natalie Holm
Observations by Niklas Åstenius and Lisa Björk

XVI. SCC CASE 113/2007
SUBJECT-MATTERS:
Separate award on costs -- Claimant had paid the full Advance on Costs and requested the arbitrator to issue a separate award ordering the Respondent to reimburse the Claimant for its share.
Observations by Christer Söderlund

INDEX