Major proposed changes and additions
The Arbitration Institute of the Stockholm Chamber of Commerce (SCC) has prepared a draft of the revised SCC Rules(1) and the revised SCC Expedited Rules(2) to be introduced on January 1 2017 in connection with the SCC's 100th anniversary. The draft revised rules have been distributed to the arbitration community worldwide for comments and input, and several hearings have been held to discuss them, including a hearing in Stockholm on June 10 2016.
Major proposed changes and additions
The SCC's aim is to change and add certain provisions that may be helpful for users of SCC arbitration, while simultaneously maintaining the established SCC arbitration approach of flexibility, cost efficiency and a light administrative touch.
In Articles 13 to 15 of the draft rules, new provisions and amendments were proposed to resolve issues that may arise in multi-party and multi-contract arbitration:
- Article 13 deals with joinder of additional parties;
- Article 14 deals with multiple contracts in a single arbitration; and
- Article 15 deals with the consolidation of several arbitrations.
Numerous complex issues may arise in multi-party and multi-contract situations, but to resolve them all beforehand under institutional arbitration rules is impossible. In order to avoid exceptionally detailed rules, which would be inconsistent with the traditional SCC approach, the proposed rules give the SCC board a certain amount of discretion to decide on when to accept joinder, multiple contracts in one arbitration and consolidation.
Where claims are made under several arbitration agreements, one of the proposed requirements for the board's consideration is whether "it may be inferred, having regard to all relevant circumstances, that there is an agreement between all parties to the arbitration that the claims may be determined in a single arbitration".
A new provision concerning administrative secretaries has been added to Article 24 to ensure that the secretary is impartial and independent, and that the appointment is transparent and subject to the parties' approval.
A new provision on security for costs has been proposed in Article 38. According to the proposed provision, the Arbitral Tribunal may order a claimant or counter-claimant to provide security for costs in any manner that the tribunal deems appropriate. Failure to provide such security may result in a dismissal or stay of the party's claims in whole or in part. When discussed during the Stockholm hearing, it was expressed that this provision should be applied only in extraordinary circumstances. It remains to be seen whether a wording clarifying such application will be added. It is also open for discussion whether this provision grants new authority for the tribunal or if a possibility to grant security for costs already exists under the current provision on interim measures.
The most innovative and debated of the proposed new provisions is Article 39 on summary procedure. Its purpose is to give the tribunal a flexible case management tool aimed at making the proceedings more efficient. According to the proposed provision, a party may request the tribunal to decide on one or more issues of fact or law by way of summary procedure, "without undertaking every procedural step that might otherwise be adopted for the arbitration". However, general requirements on due process still apply, including that each party must be given an equal and reasonable opportunity to present its case.
The revised SCC Rules will address certain recurring issues in international arbitration, including multi-party and multi-contract situations, security for costs and administrative secretaries. The new provision on summary procedure also clarifies that the SCC procedure can be tailored to meet the demands of the parties in each particular case. Although certain of the new provisions aim at resolving complex issues and situations, the rules remain relatively minimalistic in approach. The new rules also give the SCC board certain additional tasks – for example, to determine when joinder should be accepted.
The SCC Revision Committee is currently analysing the input from the arbitration community and has communicated that it may revise some of the proposed provisions.
For further information on this topic please contact Fredrik Norburg or Pontus Scherp at Norburg & Scherp by telephone (+46 8 420 035 00) or by email ([email protected] or [email protected]). The Norburg & Scherp website can be accessed at www.norburgscherp.se.
(1) See http://sccinstitute.com/media/93603/16-draft-14-26042016-arbitration-rules-2017_for-consultation.pdf.
(2) See http://sccinstitute.com/media/93602/09-draft-09-26042016-rules-for-expedited-arbitrations_2017_eng_-consultation.pdf.