Publications - Jul 01, 2021

Disputes are an inevitable part of the conduct of business operations. When such disputes arise, finding a settlement is not always easy when both parties are convinced that they are right. In such situations, the help of a third party providing them with an early assessment of their respective positions on the entire dispute, or only some of its key issues, may considerably increase the chances of a settlement.

Description of the SCC Express

The Arbitration Institute of the Stockholm Chamber of Commerce (“SCC”) has developed a new set of rules called “express dispute assessment” rules (“SCC Express”) which provide for a consent-based and confidential process through which parties to a dispute receive a legal assessment of the dispute from a neutral assessor (the “Neutral”) in less than a month, for a fixed fee of USD 29,000. Indeed, any party to a dispute may request the SCC Board to appoint a Neutral to evaluate in a prompt manner one, several, or all issues of fact or law relating to the dispute within 21 days from the date on which the request has been referred to the Neutral.

The Neutral plays an active role and manages the proceedings closely. The findings of the assessment include the Neutral’s position and reasoning on the issues presented by the parties. The parties can agree to make the assessment contractually binding or to use the non‑binding findings to guide settlement discussions or other ways forward.

SCC Express is available to all parties hoping to find a quick resolution to their dispute, including when no SCC arbitration agreement exists between them. In other words, any parties to an upcoming or ongoing dispute may decide to submit their dispute to SCC Express proceedings for an assessment. However, the parties must expressly consent to such assessment beforehand.

Practical advantages and disadvantages of the SCC Express

SCC Express allows disputing parties to receive an assessment of their position by a neutral third party in a significantly shorter timeframe (21 days) than that of regular arbitration or litigation proceedings and for lower costs.

In addition, unlike in mediation proceedings, the Neutral does not try to conciliate the parties’ positions. The Neutral’s role is to explain to the parties which of their positions would likely prevail pursuant to the law governing their dispute if this matter were to be decided by a judge or an arbitrator. Accordingly, this mechanism is likely to foster early settlements in situations where parties are willing to settle but are unable to make compromises because they are both persuaded that their position is entirely well founded.

Furthermore, if a settlement turned out to be impossible, having recourse to this mechanism would be very likely to foster an efficient conduct of any ensuing arbitration or litigation proceedings given that a significant portion of the necessary work to collect, review, marshal and present the evidence would most likely already have been done in the context of the SCC Express.

Despite the advantages described above, a note of caution is required. The SCC Process may not be well-suited for all types of disputes. Its short timeframe makes it more adapted to less complex disputes or to disputes that hinge on a few legal or limited factual issues. While it may also be used to seek a broad assessment of a complex dispute, such an exercise would require strong advocacy skills from the parties’ counsel to ensure that their position is conveyed to the Neutral in a digestible manner despite the complexity of the relevant set of facts or legal issues, thereby mitigating the risk that important aspects be omitted or misunderstood as a result of the short 21-day timeframe provided by the SCC Express Rules.

Parties to contracts envisaging to have recourse to SCC Express will need to tread with care, but the creation of this mechanism is a welcome addition to the alternative dispute resolution mechanisms toolbox available to business operators. Although SCC is usually not the preferred institutional choice for business operators in Africa, such operators might, in the future, consider adding this device or similar devices to their array of alternative dispute resolution mechanisms.

We would be happy to advise on how this and similar mechanisms may help business operators achieve their goals in relation to existing or future disputes.

Should you have any questions, please contact:

Jacob Grierson

Thomas Granier
Of Counsel

Sacha Karsenti