INTERNATIONAL COMMERCIAL ARBITRATION IN SWEDEN

Transcription

1 INTERNATIONAL COMMERCIAL ARBITRATION IN SWEDEN PROF. DR KAJ HOBER Partner, Mannheimer SwartlingAdvokatbyra OXPORD UNIVERSITY PRESS

2 CONTENTS Table of Cases Table of Legislation XV xxiii 1 Introduction 1.1 History of Arbitration in Sweden 1.2 The Swedish Legal System General The courts and the judiciary The courts The judiciary The legal profession 1.3 The Arbitration Institute of the Stockholm Chamber of Commerce 1.4 Sovereign Immunity and International Commercial Arbitration in Sweden Sovereign immunity in general Introduction National legislation The UN Convention Immunity from jurisdiction Arbitration Sovereign immunity and Swedish law 1.5 Sovereign Immunity, and Arbitration General observations Sovereign immunity and arbitration under Swedish law 2 Applicable Law 2.1 Introduction 2.2 LexArbitri The Law Governing the Arbitration 2.3 Party Autonomy Choice of Law by the Parties Introduction The content of party autonomy Exercising parry autonomy Restrictions on parry autonomy General comments ' Vll

3 No reasonable connection National public policy Mandatory rules of municipal law International public policy The function of international public policy The content of international public policy No Choice of Law by the Parties Introduction Swedish conflict of laws rules The 1964 Act on the Law Applicable to International Sales of Goods The centre of gravity test The 1980 Rome Convention The Rome I Regulation Issues Not Covered by the Lex Contractus Lex corporationis Agency Negotiable instruments Torts Property Classification Rules The Law Governing the Arbitration Agreement The Arbitration Agreement Introduction The Validity of an Arbitration Agreement General remarks Requisites of a valid arbitration agreement Concluding the Arbitration Agreement / Arbitration agreement in writing Oral arbitration agreement Arbitration agreement by conduct Arbitration agreement as a result of parry usage Arbitration agreement by 'inactivity' Interpretation of Arbitration Agreement Unenforceability of Arbitration Agreements due to the Swedish Contracts Act The Doctrine of Separability Introduction Application of doctrine of separability Should the application of the doctrine of separability be limited? No agreement in the first place 3.55 vin

4 The principal agreement is void ab initio, voidable, or has been declared invalid Invalidity of the Arbitration Agreement Arbitrabiliry Disputes capable of settlement The existence of factual circumstances Filling gaps Consumer and labour disputes Civil law effects of competition law Effects of Arbitration Agreement Bar to court proceedings Respondent has failed to cooperate in arbitration Respondent has disregarded the agreement in previous court proceedings The subject matter of the dispute is non-arbitrable Assistance by courts Rules of organization and procedure Authority of arbitrators Effect of arbitration agreement on third parties Party substitution Guarantee agreements Conduct by third parties, including the 'group of companies' doctrine Confidentiality Termination of Arbitration Agreement Introduction Termination with respect to existing dispute By understanding Events during proceedings Judgment Expiration of award period Award Complete termination Drafting of Arbitration Clauses The Arbitrators Appointment of Arbitrators Introduction Appointment of arbitrators under the SAA Arbitrators not specifically named in agreement Arbitrators specifically named in agreement Arbitrators in multi-party arbitrations Rules SCC Other rules 4.36 ix

5 4.2 Qualifications of Arbitrators Powers and Duties of Arbitrators Relation of Arbitrators to the Parties Challenge and Replacement of Arbitrators The SAA Grounds for challenge. Disclosure Procedure Replacing arbitrators Rules Compensation of Arbitrators Fees and expenses Value Added Tax (VAT) on arbitrators'compensation Rules Jurisdiction of the Arbitral Tribunal Introduction Issues Affecting the Jurisdiction of the Arbitrators The Arbitrators'Determination of their Jurisdiction Court Review of the Arbitrators'Jurisdiction ' Situations in which a court may consider a declaratory action with respect to the jurisdiction of the arbitrators Jurisdiction of the Swedish courts Requirements with respect to declaratory judgments Potential effects of a declaratory action with respect to the jurisdiction of the arbitrators Anti-suit Injunctions Rules The Procedure before the Arbitral Tribunal Introduction General Principles of Swedish Judicial Procedure Basic Principles of Arbitration Procedure Party autonomy Impartiality, practicality, speed Audi alterampartem Commencing the Arbitration Proceedings Request for arbitration SCC Rules Service of the request for arbitration, the award, and other documents Proof of notification and methods of service 6.48

6 'Notices' clauses Persons authorized to accept service Particular rules for service of documents outside Sweden SCC Rules 6.5 Conduct of the Arbitration General Written submissions Prayers for relief Legal grounds Facts and circumstances Post-hearing briefs Evidence Introduction Powers of the arbitrators Admissibility of evidence Documentary evidence and production of documents Documentary evidence Production of documents Witnesses and experts Hearing of witnesses Written witness statements Experts Inspection of the subject matter of the dispute Evaluation of evidence Evidence taken with court assistance Hearings Introduction The main hearing 7 The Award 7.1 Introduction 7.2 Principles of Decision ', Decision according to law Keeping within Authority Dealing with all matters 7.3 Deliberations and Voting 7.4 Different Kinds of Awards and Decisions Award or decision? Separate awards Interim awards Consent awards Default awards 7.5 Formalities 7.6 Reasons and Dissenting Opinions XI

7 7.7 Interest and Costs Interest Costs Rendering the Award Effects of the Award Execution Time starts running Termination of arbitration agreement Resjudicata Application of the principles of Uspendens and resjudicata in Swedish arbitration law Resjudicata and lispendens in international arbitration Correction and Interpretation of the Award General Correction of arbitral awards Amendment of arbitral awards Interpretation of arbitral awards SCC Rules Setting Aside Arbitral Awards Invalid and Challengeable Awards General remarks Principle of in dubiopro validitate Burden of proof Other means of recourse Jurisdiction of Swedish courts Invalid Arbitral Awards Grounds for invalidity Non-arbitrability Violation of public policy ' Formal requirements of the arbitral award Non-statutory grounds for invalidity Situations where an 'award' may not be characterized as an arbitral award The party against whom the award was made was not a party to the arbitration proceedings An award too obscure to enforce Invalidity of part of the award Challenge of Arbitral Awatds Grounds for challenging an award No arbitration agreement Excess of mandate Award after the expiration of a time limit for rendering of the award Excess of mandate 8.69 XII

8 8.3-4 The arbitration should not have taken place in Sweden Improper appointment of arbitrators One of the arbitrators should have been disqualified Other procedural irregularities The irregularities to which the general clause applies Probable influence on the outcome of the dispute The procedural irregularity must not have been caused by the fault of the challenging parry Waiver of Right to Challenge Impliedwaiver Exclusion agreements Remission of Arbitral Awards Review of Jurisdictional Awards Introduction Scope of application Scope of the review ' Application of section 36 of the SAA in practice Recognition and Enforcement of Arbitral Awards Enforcement of Swedish Awards Enforcement in Sweden 9: Enforcement abroad Enforcement of Foreign Awards Nationality of award Recognition and enforcement The New York Convention v the Swedish Arbitration Act Separate, partial, and interim awards Grounds for refusing recognition and enforcement Lack of capacity of the parties and invalidity of arbitration agreement ' Violation of procedural due process Excess of mandate Improper composition of the arbitral tribunal or improper arbitral procedure Arbitral award not binding Non-arbitrability, Public policy Procedures for recognition 9.64 Appendix 1 The Swedish Arbitration Act 375 Appendix 2A Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (2010) 388 Appendix 2B Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce (2010) 402 XHl

9 Appendix 3 Procedures and Services under the UNCITRAL Arbitration Rules 415 Appendix 4 UNCITRAL Model Law on International Commercial Arbitration (1985) 417 Appendix 5 UNCITRAL Arbitration Rules (1976) 429 Appendix 6 UNCITRAL Arbitration Rules (2010) 441 Appendix 7 Requests to set Aside Arbitral Awards on the Basis of Section 33 and/or Section 34 of the SAA 456 Appendix 8 Review of Arbitral Awards on Jurisdiction 465 Appendix 9 Enforcement of Arbitral Awards 467 Index 469 xiv