SCC Spotlight: Filippa Exelin

In this SCC Spotlight Talk, Filippa Exelin, International Arbitration Partner at White & Case in Stockholm takes us through the landscape of construction disputes. With her extensive experience handling complex cases across energy, infrastructure, and construction, she offers insights into emerging trends, cost concerns, and effective dispute resolution strategies in construction arbitration.

What are the latest trends in the arbitration of construction disputes? 

In general, we see more construction disputes. We also see more objections in these disputes, and the objections are becoming increasingly sophisticated. There are more disputes related to the prime cost principle, and even large infrastructure projects face contract terminations. 

Construction disputes are also becoming more complex and extensive, requiring significant document management resources that drive up costs. The scope of modern construction projects, often large-scale and intricate, contributes to this trend. Additionally, international actors are increasingly involved in major Swedish construction projects, which introduces more aspects of international arbitration. Finally, we also see contracts influenced by FIDIC becoming more common. 

How can parties address the growing concerns over cost and duration of construction arbitration? 

Parties should use all tools at their disposal to resolve disputes on an ongoing basis. Many projects last several years, so maintaining a functioning working relationship is crucial. It’s often worth engaging a specialised disputes lawyer early in a project to address issues proactively rather than waiting until the project is in serious trouble. 

To address costs and duration, it is recommended that the parties agree on effective dispute resolution mechanisms as the project progresses. Options like dispute adjudication boards (DABs), SCC Express, or mediation can help. The proposed new rules on simplified dispute resolution in Swedish standard contracts (AB 25 and ABPU 25) might also play a role. 

While arbitration proceedings can be extensive, they tend to be faster and more efficient than court proceedings. Parties should raise concerns about costs and duration early in the process and work with arbitrators to design streamlined proceedings. Front-loading submissions and shaping the process to suit the case can be effective. 

Settlement discussions or mediation are also worth considering. For example, parties could agree to conduct settlement discussions after the first round of submissions. Successful mediation can shorten or streamline proceedings, reducing overall costs. 

Could arbitration be a suitable mechanism for resolving public sector construction disputes? 

Arbitration is indeed well-suited for public sector construction disputes. One key advantage is the ability to appoint arbitrators with the necessary expertise. In court, this level of specialization can’t be guaranteed. 

Time efficiency is another major advantage. According to the SCC’s 2024 report, “Dispute Resolution in Public Procurement Contracts”, arbitration resolves such disputes almost a year faster than court proceedings on average. Given the societal and economic importance of these projects, quick resolution is essential. 

The enforcement aspect is also crucial, particularly when international actors are involved. The New York Convention ensures that arbitral awards are recognised and enforced in convention states, offering better enforceability in international contexts compared to court judgments.