The new Stockholm Chamber of Commerce (SCC) Arbitration Rules enacted as of 1 January 2010 encompass a few alterations, where the most prominent ones are regulations regarding the appointment of an emergency arbitrator.
The new rules on an emergency arbitrator are designed to meet urgent needs of the parties to a dispute when it comes to such issues as the preservation of evidence or establishment of security over assets and allow obtaining expediently an appropriate interim measure out of court.
Pre-arbitral interim relief
The SCC Arbitration Rules allow a party to request interim measures both prior to and after the commencement of arbitration, but before the referral of the case to an arbitral tribunal, with the help of a so-called emergency arbitrator specifically appointed for that purpose by the SCC Institute. A request for pre-arbitral interim measures may concern any interim measure appropriate for the issue at hand.
The rules on an emergency arbitrator are designed as an opt-out solution and thus apply to all SCC arbitrations unless the parties expressly agree otherwise. The rules are not intended to be available on an ex parte basis and therefore require notification of the opposing party. The new provisions on an emergency arbitrator are found in Appendix II of the SCC Arbitration Rules which is incorporated by a reference in Article 32.
Procedure
Requirements for an application for the appointment of an emergency arbitrator are set out in Article 2 of Appendix II. The SCC Rules require, among other things, that a request shall be reasoned. As soon as the Secretariat of the SCC Institute receives an application it shall notify the other party.
The SCC Rules establish that the Board of the SCC Institute shall seek to appoint an emergency arbitrator within 24 hours of the receipt of the application. During the proceedings each party shall be given an equal and reasonable opportunity to present its case, taking into account the urgency inherent in such proceedings.
An emergency decision on interim measures shall be made not later than five days from the referral of the case to the emergency arbitrator and may be subject to provision of appropriate security. The five-day period may however be extended by the Board upon a reasoned request from the emergency arbitrator or if it is otherwise deemed necessary, e.g. if the defendant has not been served or the notification has taken a long time.
Effect of an emergency decision on interim measures By agreeing to arbitration under the SCC Arbitration Rules the parties thereto undertake to comply with any emergency decision without delay. The SCC Rules entitle an emergency arbitrator to grant pre-arbitral interim relief in the form of either an order or an award although it is doubtful whether such an award may be enforced under the New York Convention.
An emergency decision may be amended or revoked by the emergency arbitrator upon a reasoned request by a party. It also ceases to apply if arbitration is not commenced within 30 days from the date of the emergency decision, or if the case is not referred to an arbitral tribunal within 90 days from the date of the emergency decision.
An arbitral tribunal is obviously not bound by the decision(s) and reasons of the emergency arbitrator.
Costs
The costs of the emergency proceedings consist of a fixed fee for the emergency arbitrator of EUR12,000 and an application fee of the SCC Institute the amount of EUR3,000. The costs of the emergency proceedings, not expressly including the cost for legal representation, may be apportioned between the parties by the arbitral tribunal in the final award at the request of a party.
Other amendments Among other amendments of the SCC Rules worth mentioning that the time period given to the parties to jointly appoint an arbitrator has been reduced from 30 to 10 days and that the Rules now require that an arbitrator’s statement of impartiality and independence shall be sent by the Secretariat not only to the parties but also to the other arbitrators.
Scope of application
The new Rules apply to any arbitration commenced on or after 1 January 2010 and in respect of applications for the appointment of an emergency arbitrator to such applications as are filed as of the said date.