SCC Case 99/1997 - Chapter 3 - SCC Arbitral Awards - 1999-2003

About the Editors:
Sigvard Jarvin has been involved in more than 215 international arbitrations under the arbitration rules of the ICC, the Stockholm Arbitration Institute, the Dutch Arbitration Institute, the American Arbitration Association, LCIA, UNCITRAL, the Cairo Regional Centre, and other arbitration organizations. He was general counsel to the ICC International Court of Arbitration, Paris (1982-1987) and member of the Court (1988-1995). He also chaired the ICC working party revising the ICC/CMI Maritime Arbitration Rules (1997-1998).

Mr. Jarvin was the rapporteur at the 1990 and 1998 ICCA Congresses and was chairman of the foreign section of the Swedish Bar from 1999 to 2000, and he is also a member of the board of the Institute of Arbitration Law at Stockholm University and a member of the ICC Commission on Arbitration and the International Arbitration Club, London. He is cited yearly as one of the best arbitration lawyers in France in Chambers Global — The World’s Leading Lawyers , published by Chambers & Partners.

Annette Magnusson, is a Professional Support Lawyer at the firm of Mannheimer Swartling, Stockholm. She was formerly Assistant Secretary General and legal counsel for the Arbitration Institute of the Stockholm Chamber of Commerce.

Observation Commentary by:

Sarah Francois-Poncet, Partner, Salans Hertzfeld & Heilbronn, Paris, Chair of the firms' International Arbitration Practice Group, Member ICC Commission on International Arbitration.

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Originally from SCC Arbitral Awards 1999-2003

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Subject-matters:

(1) Conformity of delivered goods (quality complaints).
(2) May prolongation of the delivery term in the issued letter of credit beyond the dates stated in the contract be interpreted as extension granted to the seller for delivery?
Procedure: (3) Who is to bear the costs of arbitration as between the parties, when both parties’ claims were satisfied in part?

Findings:
(1) The only documents submitted in this case supporting Respondent’s statement are the letters that had been sent by Respondent to Claimant concerning complaints of the quality. The evidence put forward in this respect is not sufficient to prove that the quality of the delivered goods was not in accordance with the contract.
(2) The burden of proof for Claimant being given an extension lies with Claimant. The arbitrator has found that Claimant has not succeeded in presenting enough evidence supporting such statement. The arbitrator therefore finds that the delivery of the goods was made six days late and Claimant has to pay contractual penalty for the delay.
(3) Where Claimant has been awarded a substantial part of its claim, Respondent shall, in relation between the parties, bear the costs of the arbitrator and the Arbitration Institute.

Parties: Claimant: X, Seller (Romania)
Respondent: Y, Buyer (Germany)

Table of Contents:

III. SCC case 99/1997

Subject-matters:

(1) Conformity of delivered goods (quality complaints).

(2) May prolongation of the delivery term in the issued letter of credit beyond the dates stated in the contract be interpreted as extension granted to the seller for delivery?

(3) Who is to bear the costs of arbitration as between the parties, when both parties’ claims were satisfied in part?

Observations by Sarah Francois-Poncet