Hamilton Perspectives Nyhetsbrev

New Government Bill Proposing Modernisations in the Swedish Arbitration Act

Introduction

On 4 September 2018, the Swedish go­vern­ment is­su­ed a bill with the pur­po­se of mo­der­ni­sing the Swedish Arbitration Act. The main pur­po­se of the pro­po­sal is to ma­ke ar­bitra­tion in Sweden mo­re ef­fi­ci­ent and avai­lab­le to fo­rei­gn par­ti­es. The new le­gis­la­tion is pro­po­sed to en­ter in­to ef­fect on 1 March 2019.

An Arbitral Tribunal’s Ruling on Its Competence May Bar a District Court from Ruling on the Same Issue

Presently, an ar­bi­tral tri­bu­nal may ru­le on its com­pe­tence to ad­ju­di­ca­te the ar­bitra­tion; eit­her when the is­sue is ra­i­sed, i.e. du­ring the pro­cee­dings, or when ren­de­ring the award. However, a par­ty to the ar­bitra­tion is al­so al­lo­wed to fi­le a claim for a decla­ra­to­ry judg­ment to a district court re­gar­ding the sa­me is­sue. Accordingly, the is­sue of whet­her the ar­bi­tral tri­bu­nal has com­pe­tence to ad­ju­di­ca­te in the ar­bitra­tion pro­cee­dings may be sub­ject to two si­mul­ta­ne­ous pro­cee­dings.

The go­vern­ment pro­po­ses that an ar­bi­tral tri­bu­nal’s ru­ling on its com­pe­tence shall be a pro­ce­du­ral im­pe­di­ment that a par­ty may in­vo­ke in or­der to pre­vent the sa­me is­sue from be­ing ra­i­sed in a district court. Furthermore, the go­vern­ment pro­po­ses that the de­ci­sion by the ar­bi­tral tri­bu­nal may be ap­pe­a­led to a court of ap­pe­al.

Applicable Substantive Law

The Arbitration Act do­es not con­tain any pro­vi­sions as re­gards what sub­stan­ti­ve law the ar­bi­tral tri­bu­nal shall ap­p­ly to the ar­bitra­tion. The go­vern­ment pro­po­ses that a pro­vi­sion is ad­ded whe­re­in it is ex­pli­cit­ly sta­ted that the ar­bi­tral tri­bu­nal shall ap­p­ly the sub­stan­ti­ve law agreed upon by the par­ti­es. In the ab­sence of an agre­e­ment between the par­ti­es, the ar­bi­tral tri­bu­nal shall de­ci­de on what sub­stan­ti­ve law is to be ap­pli­cab­le on the ar­bitra­tion.

Challenge of Awards

Legal Grounds

According to the Arbitration Act, an award shall be set asi­de to the ex­tent that the ar­bi­tral tri­bu­nal has ex­cee­ded its man­da­te when de­ci­ding on an is­sue. A furt­her requi­re­ment, which has be­en established by ca­se law, is that to set asi­de an award on this ground al­so requires that it is li­kely that the ex­cee­ding of the man­da­te has had an ef­fect on the outcome of the ca­se. The go­vern­ment pro­po­ses the afo­re­men­tio­ned ca­se law to be co­di­fi­ed in the Arbitration Act.

Time Frame

It is pro­po­sed that the ti­me frame for fi­ling a claim to chal­lenge an award is shor­tened from th­ree to two mont­hs.

Presentation of Oral Evidence in English

Arguably the big­gest news in the bill is a pro­po­sal to per­mit ex­a­mi­na­tion of wit­nes­ses in English wit­hout trans­la­tion to Swedish.

Leave to Appeal in the Swedish Supreme Court

Currently, a court of ap­pe­al’s judg­ment can­not be ap­pe­a­led to the Supreme Court un­less the court of ap­pe­al grants per­mis­sion in the judg­ment. The court of ap­pe­al can­not grant such per­mis­sion par­ti­al­ly. Consequently, the judg­ment in its en­tire­ty will be sub­ject to pro­cee­dings in the Supreme Court notwit­h­stan­ding that the­re may be on­ly a par­ticu­lar is­sue that is of in­te­rest to the Supreme Court.

The go­vern­ment pro­po­ses that a requi­re­ment for le­a­ve to ap­pe­al in the Supreme Court is im­ple­men­ted. Accordingly, the requi­re­ments for pro­cee­dings in the Supreme Court would be two­fold; first­ly a per­mis­sion to ap­pe­al must be gran­ted by a court of ap­pe­al and se­cond­ly the Supreme Court must grant a le­a­ve to ap­pe­al.

Our Comments

The pro­po­sed changes are wel­come cla­ri­fi­ca­tions and con­sti­tu­tes re­a­so­nab­le me­a­su­res of ma­king ar­bitra­tion in Sweden mo­re ef­fi­ci­ent. Of par­ticu­lar in­te­rest are the va­ri­ous pro­po­sals of ma­king ar­bitra­tion mo­re avai­lab­le to fo­rei­gn par­ti­es, e.g. to per­mit pre­sen­ta­tion of oral evi­dence in English (wit­hout the need for trans­la­tion to Swedish).