SCC awards now released online
Twelve anonymized awards rendered under the SCC Rules between May 2016 and November 2019 are now available at the Kluwer Arbitration database. They cover a variety of procedural and substantive law issues that give first-hand insight into the SCC’s arbitration practice.
As we have previously announced, SCC, in collaboration with ICCA and Kluwer Arbitration, anonymized a number of SCC awards for publication in the ICCA Yearbook and in the Kluwer Arbitration database.
The awards released are as follows:
Award no. 2015/078 concerned the burden to prove the right to payment of additional amounts under two contracts.
Award no. 2016/047, the sole arbitrator found, as a matter of contract interpretation, that the non-compete clause in a contract for the sale and purchase of shares applied, and that its breach led to a reduction of the purchase price and an obligation by the party in breach to pay damages.
Award no. 2017/058, which concerned a claim for demurrage and detention charges incurred when the buyer refused to accept a delivery of goods, rejected the attempt of the buyer to explain its failure in the context of its relationship with various entities in the group of the seller; the arbitrators also found that the claimant seller did not accept the jurisdiction of an institute other than the SCC by citing a meeting of the shareholders of the respondent which had authorized application to a different arbitral institute to conduct an independent legal evaluation of the situation between the parties.
Award no. 2017/124 held that the request of the claimant based on a contractual provision for a “penalty” (contractual penalties being unenforceable under the contractually applicable English substantive law) could be granted because it was in fact a request for liquidated damages; it also held that the guarantor – which had guaranteed the financial obligations of the respondent buyer to the claimant seller – was bound to the arbitration agreement in the guaranteed contract.
Award no. 2017/134, the arbitral tribunal rejected the argument that the tribunal’s duty to render an enforceable award prevented it from awarding the relief sought by the claimant, because the enforcement of such an award in Russia would lead to the bankruptcy of the respondent and thus to a violation of Russian public policy.
Award no. 2017/164, dealt with the termination and breach of a distribution agreement.
Award no. 2018/040, the arbitral tribunal dismissed the claimant’s claim for damages, finding that the claimant did not prove that the respondent – the pledgee – had breached its duty of care in the process for the forced sale of the shares of a subsidiary of the claimant, which the claimant had pledged as security in favor of the respondent.
Award no. 2018/072, found that the provisions of Russian law granting exclusive jurisdiction to the Russian courts over claims relating to real estate did not apply because the dispute did not concern a property but rather contractual rights and compensation for loss of profits in relation to its operation.
Award no. 2018/084, concerned the issue whether the shareholders’ agreement between the parties obliged the respondent, a consultant to and a shareholder of the claimant, to sell his shares in the claimant following the termination of the consultancy agreement.
Award no. 2018/097, dismissed a number of objections to jurisdiction, including in respect of the arbitrability of the claims and the potential difficulties of enforcement under the 1958 New York Convention.
Award no. 2018/102, the sole arbitrator found that a settlement agreement had novated the contract between the parties, but that this finding did not affect the arbitration clause in the original contract, which, because of its separability, extended to claims under the settlement agreement.
Finally, Award no. 2018/127 applied Swedish law, chosen by the parties to govern both the main agreement and the (separable) arbitration agreement therein, to conclude that there was no common intention of the parties that the choice for the state courts of Xanadu in a subsequent order confirmation would supersede the arbitration agreement.