SCC Case 74/2000 - Chapter 2 - SCC Arbitral Awards: 2004-2009

(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.

Findings:

(1) Despite the requirement of a “written consent,” it must be possible to agree in another form. However, in the absence of a written consent by the debtor, and as it had not been clearly demonstrated that the debtor had been made aware of and accepted a transfer of rights and duties by the assignor and the assignee under the disputed agreement, the arbitration clause in the agreement was not binding between the debtor and the assignee.

(2) Since the Claimant had made use of the option available to both parties under the clause—i.e, arbitration—the existence of Claimant’s option to submit disputes to a court of law did not invalidate the arbitration agreement.

Table of Contents:

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