SCC Case 143/2003 - Chapter 9 - SCC Arbitral Awards: 2004-2009

(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.

Findings:

(1) An entity that due to the Claimant’s failure to name it in the Request for Arbitration did not take part in the formation of the arbitral tribunal cannot be counted as a respondent in the arbitration.

(2) An arbitral tribunal may not “pierce the corporate veil” of one entity so as to exercise jurisdiction over another entity if that second entity is not a party to the arbitration.

(3) An assignment merely of the proceeds of the contemplated cause of action, and not of the cause of action itself, is effected by the 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) An arbitration clause in a contract between an aggrieved entity and a company liquidated by state decree does not include within its scope the aggrieved entity's dispute with the state and with the government-appointed entity charged, by state decree, with administering the debts of the liquidated company.

(5) When considering allocation of recoverable costs as between the Parties, the Tribunal has to take account of all the circumstances of the case.

Table of Contents:

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