Bridging the Gap: The SCC’s Express Dispute Assessment and Latin America

Reforms to international dispute resolution have generally focused on refining the two ends of its spectrum, the binding award and the consensual settlement. The SCC Arbitration Institute (“SCC”), however, has offered a distinct procedural category to address the middle ground: a reasoned, expedited, and fixed-fee assessment of the dispute delivered by a neutral legal expert appointed by the SCC. The process permits the parties to gauge their respective positions without committing to the cost, timeline or finality of traditional adjudication. Its usefulness depends on where the disputes that it was designed for are common, and Latin America constitutes a natural setting for it.

The SCC Express Rules: A Category of Its Own

The SCC launched the Rules for Express Dispute Assessment in 2021, and revised them in 2023 (“Rules”). The mechanism is consent-based, confidential, and independent of any arbitration agreement. Parties may include the Rules in the dispute resolution clause of the underlying contract, and the SCC provides model clauses for this purpose, including stand-alone and escalation provisions that position the assessment as autonomous, or as a step before arbitration. Written into the clause at the outset, the Rules operate without requiring the parties to agree on their use once the dispute is live.

Under the Rules, a neutral legal expert (“Neutral”) appointed by the SCC Board delivers a reasoned assessment of one or more issues of fact or law within 21 days of referral, for a fixed fee of EUR 29,000. The SCC appoints the Neutral within 48 hours of receiving the parties’ mutual consent and payment.  Under Article 7 of the Rules, the Neutral then holds a case management conference, and establishes a procedural timetable.  The Neutral has broad discretion under the Rules, and may play a more active, inquisitorial role compared to an arbitrator.  For example, the Neutral may direct the parties on the facts and issues to address in submissions, restrict or limit the length of written submissions and oral testimony, and even give a preliminary oral assessment.  Moreover, the due process concerns which parties may raise about expedited arbitration do not typically arise here, as the Neutral does not render an award, nor do the participating parties waive their procedural rights.

Since its inception, the mechanism has continued to attract attention. The first publicly reported case was administered in 2023 and involved a payments dispute under a public procurement contract, where the supplier had secured an additional contract with the same authority. Rather than face court litigation that could have lasted years, the parties opted for SCC Express, preserving a relationship both sides valued. That SCC Express proceeding was concluded within the three-week deadline after two rounds of written submissions and a short oral hearing. As counsel in the case stated: “Choosing SCC Express allowed the parties to navigate the impasse professionally and cordially, preserving their relationship and interests without compromising their rights.”

The Neutral’s findings are not binding by default, though the parties may agree to make them contractually binding or, subject to the Neutral’s consent, appoint the Neutral as an arbitrator in a separate, new proceeding to confirm the assessment in an enforceable award. The process is strictly confidential, and the findings may not be disclosed or used in subsequent proceedings unless the parties agree otherwise.

By nature, the Rules are different from mediation or arbitration. Mediation seeks a mutually acceptable compromise. Arbitration produces a binding and enforceable award. The Rules, however, offer an independent, impartial, reasoned, and non-binding legal assessment of the merits on the issues presented by the parties. This draws on the tradition of early neutral evaluation, delivered through institutional channels. In the SCC’s words, the Rules were “designed to fill a gap in the dispute resolution spectrum.”

The Rules reflect a broader trend of arbitral institutions (re)designing dispute assessment tools in line with rapidly evolving user demands and expectations, as discussed previously on the Blog (here and here). While adoption to date has been limited and concentrated within markets more familiar with the SCC, this article considers where the mechanism could be appropriate beyond its current footprint.

The Latin America Regional Profile Fit

Latin America has long been a hub for European investment. Against this backdrop, Nordic energy companies operate renewable portfolios in Brazil and Chile, and support the modernisation of hydroelectric assets in Peru and Colombia. Swedish engineering groups are reportedly among the leading suppliers of mining equipment across the region’s copper and base-metal operations. Beyond supplying the sector, a Swedish mining group has recently agreed to acquire a controlling stake in a regional zinc and silver producer, with the local seller becoming a significant shareholder in the acquirer. Nordic investors have also expanded manufacturing and distribution capacity through acquisitions of local companies in Argentina, Brazil, and Mexico. In Argentina’s Vaca Muerta shale, Nordic energy investment has run a full cycle from entry to recent divestment. This presence is established rather than exploratory, and it deepens as broader EU–Latin American commercial ties expand under the EU-Mercosur agreement.

Behind these ties lie long-term contracts, joint ventures, shareholder arrangements in family-controlled businesses, and supply arrangements in which disputes tend to arise while the venture is underway. In these contexts, the underlying relationship is often more economically valuable than the immediate dispute itself. 

That is where the Rules may be most useful: a delay claim, a shareholder deadlock, or a price adjustment in a long-term supply arrangement rarely warrants the cost, timeline and finality of arbitration, yet it often needs the one thing neither mediation nor conciliation delivers—a neutral view on the merits.

Consider a Nordic renewable energy investor and a Latin American operating partner in dispute over the allocation of costs arising from delays in securing environmental permits and community consent for a long-term project. Neither side gains from pressing for a binding award while the project remains viable, yet the disagreement has moved beyond what direct negotiation can resolve. A reasoned neutral assessment, delivered quickly and without foreclosing later options, lets each side test its position while leaving no trace if the dispute later escalates.

Latin America has one of the most institutionally dense and sophisticated arbitration environments in the world, with the 2025 ITA Guide to Latin American Arbitral Institutions identifying more than 170 arbitral institutions operating across Latin America and the Caribbean. Arbitration institutions in Latin America, however, do not currently offer a standardised procedure in the category of the Rules. The region has addressed that middle ground by other means, principally through dispute boards. Their purpose is preventive: the board monitors the progress of a particular project throughout, engages with the parties on its own initiative as matters arise, and issues determinations that bind the parties pending challenge in arbitration, resolving issues before they harden into disputes. What no major regional centre currently administers is a mechanism directed at resolving a dispute that has already taken shape, available even for a single question under any type of commercial relation.

To provide for disputes that may arise, parties in contracts for the development of projects in Latin America may opt to use the Rules regardless of the institution chosen for the arbitration. This could be particularly attractive where a cross-border dispute involves a party familiar with the SCC’s framework. Ultimately, the Latin American party concedes little by agreeing: the assessment binds it to nothing without its further consent, and the cost is not sunk if the dispute continues, since clarifying specific issues of fact or law in 21 days narrows both the scope and the expense of any subsequent arbitration—all of this under a process administered by an institution based in a jurisdiction consistently placed at the top of global integrity rankings, with a long history of resolving disputes between parties from very different legal traditions.

Conclusion

The Rules could find genuine traction in Latin America. The dispute profiles for which the mechanism was built are common in the region.

There is, however, an institutional and structural gap for its regional uptake: Latin America has a mature arbitral landscape, and the ground between adjudication and settlement is occupied by project-bound mechanisms directed at preventing disputes; what no major regional centre administers is a neutral evaluation that any party may use once a dispute has already crystallised. Dispute boards prevent; the Rules resolve. Uptake therefore does not turn on regional institutions adopting anything new, but on the parties themselves.

Bridging that gap requires two things: analysis and concrete action. The analytical bridge is the one this piece has sought to build. The contractual bridge can be built only by the parties, with the adoption of institutional dispute assessment before any dispute arises. Whether the mechanism comes into use rests where party autonomy places the choice—with those who draft the contracts that determine how future disputes will be resolved, bearing in mind that the fastest kind of arbitration is the one avoided altogether.