Правила Стокгольмского арбитража

Передача спора на рассмотрение в Стокгольмский арбитраж

Спор подлежит рассмотрению в Стокгольмском арбитраже, если договор содержит соответствующую оговорку о передаче спора в Стокгольмский арбитраж или отдельное арбитражное соглашение об этом.

Типовая оговорка Стокгольмского арбитража выглядит следующим образом:

«Любой спор, разногласие или претензия, вытекающие из настоящего контракта или в связи с ним, в том числе касающиеся его нарушения, прекращения или недействительности, будут окончательно разрешены путем арбитража в соответствии с Арбитражным Регламентом Арбитражного института Торговой палаты г. Стокгольма.»

Эта оговорка может дополняться следующими положениями:

«Состав арбитража будет состоять из [...] арбитров/единоличного арбитра.
Местом проведения арбитража будет являться […].
Языком арбитражного разбирательства будет […].
Настоящий контракт регулируется нормами материального права […].»

Действующий Арбитражный регламент Стокгольмского арбитража вступил в силу с 1 января 2010 года.

В Арбитражном регламенте нашли отражение такие вопросы как:

• процедура возбуждения разбирательства;
• формирование состава арбитража;
• производство по делу, осуществляемое составом арбитража;
• решения и постановления арбитража;
• арбитражные расходы;
• положения о чрезвычайном арбитре и
• некоторые другие.

Правила Стокгольмского арбитража неукоснительно соблюдаются, чтобы обеспечить прозрачность процедур для рынка и уверенность бизнеса и государственных органов в объективности организации процедуры рассмотрения споров.

Анастасия Буркова

Юрисдикция: Королевство Швеция

The Chamber is located at Malmskillnadsgatan 46 in the heart of Stockholm, with a regional office in Uppsala. The Chamber has a staff of about fifty.
The Swedish Chambers are private law Chambers (privately owned), based on voluntary membership. This differentiates them from many other public law Chambers in Europe, where they are partly governmental organisations with mandatory membership. As a result of the Chambers' independence from Government and private enterprise, the Chambers have a unique position as a trusted third party in business agreements. Because of this, the Chambers have developed a number of services for companies in need of a trusted third party when entering into business agreements. Some examples are:

The SCC is part of, but independent from, the Stockholm Chamber of Commerce and was established in 1917. The SCC has a Board and a Secretariat. The SCC provides efficient dispute resolution services.

The SCC was recognized in the 1970's by the United States and the Soviet Union as a neutral centre for the resolution of East West trade disputes, and the SCC has since expanded its services in international commercial arbitration. In recent years the number of cases filed with the SCC has increased considerably and the SCC has emerged as one of the most important and frequently used arbitration institutions worldwide.

Today the SCC caseload includes both domestic and international arbitration cases. About 50 per cent of the cases are international in the sense that they involve at least one non-Swedish party.

The SCC is part of, but independent from, the Stockholm Chamber of Commerce and was established in 1917. The SCC has a Board and a Secretariat. The SCC provides efficient dispute resolution services. Today SCC is one of the major arbitral institutions worldwide.

The SCC does not itself decide disputes. The function of the SCC is to:

• administer domestic and international disputes in accordance with the SCC’s rules;
• administer domestic and international disputes in accordance with other procedures or rules
  agreed upon by the parties (e.g. the UNCITRAL Arbitration Rules); and
• provide information concerning arbitration and mediation matters.

How does it work in practice?

Stages of the procedure:

1. Claimant files its request for arbitration, appoints an arbitrator and provides the Registration Fee

The request for arbitration shall include the names and addresses of the parties and their counsel, a summary of the dispute, a preliminary statement of relief sought, a copy of the arbitration agreement and, the name and address of the appointed arbitrator. The request may be faxed to the SCC or sent by e-mail. If the request is extensive, paper copies are preferred. In such case, the request should be submitted in five copies.

2. The SCC. The SCC makes a preliminary check on its jurisdiction and, if the registration fee is provided, notifies the respondent.

3. Respondent submits its answer to the request for arbitration and appoints an arbitrator. The answer shall include comments on the request and the name and address of the appointed arbitrator. The respondent should submit any counterclaim or set-off and any objections regarding jurisdiction in its answer. The answer may be brief.

4. The SCC appoints a chairperson and determines the advance on costs
If the respondent fails to submit its answer, or if the answer does not contain any information regarding an appointed arbitrator, the SCC appoints an arbitrator on the respondent's behalf. Apart from appointing the chairperson and determining the advance on costs, the SCC decides the seat of arbitration, should the parties not have determined it already.

5. Claimant provides its part of the advance on costs
The advance on costs shall be provided in cash to a specific bank account.

6. Respondent provides its part of the advance on costs
The advance on costs shall be provided in cash to a specific bank account.

7. The SCC refers the case to the arbitral tribunal.

8. The arbitral tribunal. The arbitral tribunal, in compliance with the conditions set down in the arbitration agreement and the SCC Rules, determines the manner of conducting the proceedings.

9. Claimant submits its Statement of Claim. The claimant shall submit a statement of claim, including the following:

• The relief sought

• The material facts and circumstances

• A preliminary statement of evidence

10. The claimant may amend its claim until the closure of the proceedings if the amendments are comprised by the arbitration agreement and the arbitral tribunal does not oppose thereto on account of the point of time of the amendment.

Respondent submits its Statement of Defence

11. The arbitral tribunal summons the parties to a hearing. An oral hearing shall be arranged if requested by either party, or if the arbitral tribunal considers it appropriate. The tribunal shall determine the time for the hearing, its duration and how it is to be organised, including the manner in which evidence is to be presented. When planning the hearing, the arbitral tribunal shall take into account the wishes of the parties. At the hearing the parties shall, at the request of the arbitral tribunal, state the evidence on which they intend to rely.

12. The arbitral tribunal makes an award. An award shall be made not later than six months as from the date when the case was referred to the arbitral tribunal.

The SCC in numbers - 2012

International disputes surpassed the number of domestic disputes brought before the SCC in 2012. In addition, 10 investment treaty cases were brought before the SCC, representing the highest number of investment treaty cases at the SCC in one year.

In 2012 parties brought 177 new cases. Of these 177 cases, 56% (99 cases) were cases administered under the SCC Rules. Parties also commenced emergency arbitrator proceedings (2), expedited arbitrations (63) and mediations (3) under the SCC Rules, and requested SCC administrative services in appointing experts (2), and SCC services in ad hoc (5) and UNCITRAL Arbitrations (3).

Most frequently, parties brought disputes arising out of service and supply agreements, representing 22,6% and 18,6% of the cases registered during 2012, respectively. Parties also brought disputes concerning business acquisitions (14,7%), real estate (8,5%), investment treaty protection (5,6%), license agreements (4,5%), joint ventures (4%), intellectual property (2,8%), among others.

Investment treaty arbitration cases

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Eight out of the ten investment treaty arbitrations were brought under alleged BITs violations and two of them were brought under alleged violations of the Energy Charter Treaty (ECT). The ECT lists the SCC as one of the three options for investor-state dispute resolution, together with ICSID and UNCITRAL Arbitration Rules (ad hoc proceedings).

50% of all new investment treaty arbitrations in 2012 were administered under SCC Rules. 30% of the investment disputes were conducted under ad hoc proceedings and 20% under UNCITRAL Arbitration Rules.¹

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In 2012, the nationality of the parties bringing their investment claims varied compared to past years. Parties from Moldova (2), the Netherlands (2) and Mauritius (2) appeared most frequently as claimant. Other parties that brought their investment claims before the SCC came from Ukraine, Germany, Egypt and Cyprus.

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Answers:

How do I start SCC arbitration?

The claimant initiates arbitration by filing a request for arbitration with the SCC Secretariat. Upon filing such request, the claimant shall pay a registration fee.

For more detailed information on go to “Initiation of Arbitration”.

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How much is it?

The arbitration costs consist of the fees of the arbitrators, the administrative fee of the SCC and any expenses of the arbitral tribunal or the SCC (such as hotel or travel expenses).

The costs are based on the amount in dispute and are calculated in accordance with a schedule of costs attached to the SCC Rules. The amount in dispute includes all claims, counterclaims and set-offs. Where the amount in dispute cannot be ascertained, the SCC Board determines the costs taking all relevant circumstances into account.

Go to our calculator for an estimation of the arbitration costs.

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How long is an arbitration before SCC?

One of the major reasons why the parties prefer arbitration before litigation is speed. The SCC offers a fast and secure process.

According to the SCC Arbitration Rules an arbitral award shall be rendered within six months and according to the SCC Rules for Expedited Arbitration an award shall be rendered within three months. The time limits may be extended by the SCC Board.

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Is an arbitration clause necessary?

Yes. The parties’ agreement to arbitrate, either as an arbitration clause in a business contract or as a separate arbitration agreement, is a requirement for resolving the dispute by arbitration instead of state court proceedings.

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How do I draft an arbitration clause?

On our website you find several model clauses recommended to use when drafting a dispute resolution clause referring to the SCC.

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Our agreement refers to the Swedish Arbitration Act. What does that mean?

If the dispute resolution clause merely refers to the Swedish Arbitration Act it means that any dispute in connection with the contract shall be solved by arbitration according to the Act instead of court proceedings. This type of arbitration is called ad hoc arbitration.

If the clause does not contain a reference to the SCC, the SCC lacks jurisdiction and the parties and arbitrators must administer the arbitration pursuant to the Act themselves.

However, should the parties so wish they could reach a new arbitration agreement referring the dispute to the SCC.

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What is the difference between the SCC Arbitration Rules and the SCC Rules for Expedited Arbitration?

If the parties have not agreed otherwise, the arbitral tribunal shall consist of three arbitrators according to the SCC Arbitration Rules. However, if the arbitration clause in silent on the number of arbitrators, the SCC Board may (taking into account the complexity of the case, the amount in dispute or other circumstances) decide that the tribunal shall consist of a sole arbitrator. When the SCC Rules for Expedited Arbitrations are applied, a sole arbitrator shall always decide the dispute.

Moreover, pursuant to the SCC Arbitration Rules, the final award shall be made not later than six months from when the arbitration was referred to the arbitral tribunal. In accordance with the SCC Expedited Rules such time limit is three months.

In SCC Expedited Arbitration, the number of written statements is limited and a hearing shall be held only if deemed necessary by the sole arbitrator.

The SCC Expedited Rules provide a faster and less costly alternative and are developed for minor and not too complex disputes.

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What is the difference between arbitration and litigation?

Arbitration has several advantages in comparison to court proceedings. Arbitration is faster, confidential and more flexible. The parties have great influence on the proceedings - i.e. language, applicable law and seat of arbitration. Furthermore, since each party shall appoint an equal number of arbitrators, the parties can ensure the arbitral tribunal possess the relevant qualifications.

If the dispute concerns an international relationship, arbitration is preferable since the award is recognized and enforceable almost all over the world thanks to the New York Convention of 1958.

In contrary to a state court judgment, an arbitral award cannot be appealed on the merits.

In arbitration the parties pay, besides costs for legal representation, fees to the arbitral tribunal and the SCC and any expenses occurred during the arbitration.

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How do I appoint an arbitrator?

Unlike some other arbitration institutions, the SCC does not keep a list/panel of arbitrators. Consequently, a party is free to appoint anyone as arbitrator as long as he or she is impartial and independent.

At the request of a party, the SCC can assist by recommending a few people suitable as arbitrators.

When appointing a chairperson or a sole arbitrator, the SCC Board for example takes the following aspects into consideration:

• Experience as arbitrator,
• the subject matter of the dispute,
• applicable law,
• the seat of arbitration and
• language of the proceedings.

If the parties are of different nationalities the SCC appoints a chairperson or a sole arbitrator from a third country.

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What should be included in the respondent’s answer?

The answer may be brief. It shall include the respondent’s position regarding the claimant’s relief, a preliminary statement of any counterclaim or set-offs, the arbitrator appointed (unless the arbitration is to be decided by a sole arbitrator) and any jurisdictional objections.

If the claimant has argued on applicable set of arbitration rules, language to be used, number of arbitrators, seat of arbitration or anything else that might affect the process, the respondent is advised to comment thereon in its answer.

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What is mediation?

Besides arbitration the SCC offers Mediation Rules.

Mediation is an alternative to arbitration and litigation. It is a fast and inexpensive way of resolving commercial disputes where the parties fully control the entire process. After a successful mediation the parties often may continue doing business.

The purpose is to reach an amicable settlement between the parties. An independent third party, acting as mediator, assists in order to help the parties to conduct practical discussions and finding a solution acceptable for both parties. A mediator may be appointed by the SCC or by the parties jointly.

The parties may, at any time, terminate the attempt to mediate.

For more information go to the SCC Mediation Institute.

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Do we have to sit in Stockholm when conducting SCC arbitration?

No. The seat of arbitration is agreed upon by the parties or, failing such an agreement, by the SCC Board.

Furthermore, the arbitral tribunal may, after consultation with the parties, conduct hearings etc at another place than the seat of arbitration.

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What is new in the 2007 SCC Arbitration Rules?

The new SCC Rules is applied to all cases filed after 1 January 2007.

No fundamental changes were made in the 2007 SCC Rules. The revision primarily aimed at making the SCC Rules correspond to recent practice and developments in international arbitration. The structure of the SCC Rules and the transparency of the decision-making procedures were also improved.

One of the most important changes was the provision regarding consolidation, which enables the SCC Board, upon the request of a party, to consolidate arbitral proceedings, if the cases concern the same legal relationship and involve the same parties. Such decision can be made only after consultation with the arbitral tribunal and the parties.

Furthermore, the possibility for the parties to influence the appointment proceedings was improved by a new provision on the appointment of a sole arbitrator. According to this provision the parties are given 30 days to jointly appoint such arbitrator.

A new feature was added to the provision regarding interim measures. Now the arbitral tribunal may grant an interim measure in the form of an order or in the form of an award. Further, the tribunal has the power to make a separate award ordering one party to reimbu

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