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SCC Case 10/2005 - Chapter 12 - SCC Arbitral Awards: 2004-2009

Author(s): 
Phillip Capper
Page Count: 
34 pages
Media Description: 
PDF from "SCC Arbitral Awards: 2004-2009"
Published: 
January, 2011
Jurisdictions: 
Egypt,
Germany,
Sweden,
International
Practice Areas: 
Categories of Disputes,
Arbitrability,
Applicable Law,
Arbitral Process,
Choice of Forum/ Place of Proceedings
Author Detail: 

 Phillip Capper, Head of International Arbitration, Lovells and Professor at King’s College, London

PDF183.68 KB

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Description: 

Originally from SCC Arbitral Awards 2004-2009

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XII. INTERLOCUTORY ARBITRAL AWARD RENDERED IN 2006 IN 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.
 
Findings:
(1) (a) The “Arbitration Committee of Sweden” did not exist but the intention of the parties was to point out an international arbitral institution with its own rules. The only such institution in Sweden was the SCC.
(b) It was not for the tribunal to decide whether the negotiations that had taken place before arbitration were sufficient.
(c) The intention of the parties must have been that no further arbitration agreement was required.
(2) Under Swedish law, which governed the issue, the dispute was arbitrable.
(3) The claimant was the legal successor to the contracting party under Austrian law. The second respondent failed to provide requested documents so the tribunal deferred to make any decision on this ground.
Table of Contents: 

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