Arbitral Proceeding - Chapter 7 - Arbitration Law of Sweden: Practice and Procedure
About the Author:
Lars Heuman is Professor of Procedural Law and Chairman of the Institute of Arbitration Law at the University of Stockholm, Sweden. Professor Heuman was a member of the committee that helped draft the Swedish Arbitration Act of 1999.
Originally From Arbitration Law of Sweden: Practice and Procedure
Arbitral Proceedings
7.1 Commencement of the ar bitral proceedings Before initiating arbitral proceedings, a party should first consider whether all of the formal and practical prerequisites are satisfied. The arbitration agreement may stipulate that a party cannot request arbitration until both parties have engaged in settlement negotiations.1 If only a short period of time is allowed from the filing of the request for arbitration to the issuance of the award, the party having the burden of proof should not initiate proceedings without first carefully preparing the case and collecting the evidence. The party should take care to not find himself in such a position during the proceedings that, owing to a shortage of time, there is no possibility for investigating all of the legal issues and procuring all of the necessary evidence.
The claimant should carefully consider the possibility that the respondent will raise a jurisdictional objection, e.g., on the grounds that the arbitration agreement is invalid or does not cover the dispute. The claimant should resolve this issue, not deciding upon the next step until it is clear whether the opposing party is going to challenge the jurisdiction of the arbitration proceedings. The respondent has until the submission of the statement of defence to make a jurisdictional objection. 2 If the objection is not raised by that time, the claimant need no longer be concerned with the issue. On the other hand, if the respondent does attack the arbitrators’ jurisdiction, resulting in the partial or total dismissal of the proceedings, the claimant can be ordered to pay the arbitrators’ fees and the respondent’s legal costs. The claimant must be prepared to take this financial risk. However, the situation becomes trickier in the event the respondent’s objection to the arbitrators’ jurisdiction is not granted. The respondent then can lodge a protest against the tribunal’s decision and reserve the right to challenge the award. The claimant is then somewhat at a disadvantage, as the respondent, but not the claimant, has the possibility to have the award set aside.3 The claimant, having requested the arbitration, cannot then assert that the arbitration agreement is invalid. The act of requesting the arbitration is deemed to imply that in the claimant’s view, the arbitrators are competent to decide the dispute.
Chapter 7 Arbitral Proceedings
7.1 Commencement of the arbitral proceedings
7.1.1 Contractual Freedom
7.1.2 Functions of the request for arbitration
7.1.3 Requirement of an express and unconditional request for arbitration
7.1.4 Requirement that the request for arbitration include a statement of the issue in dispute
7.1.5 Requirement that the request for arbitration indicate who has been appointed arbitrator
7.1.6 Need for proof of service of the request for arbitration
7.1.7 Limitation, preclusion and penal interest
7.2 The respondent's choice of arbitrator and the appointment of a third arbitrator
7.3 Planning the arbitral proceedings
7.4 The statement of claim
7.4.1 Introduction
7.4.2 The claims
7.4.3 The grounds
7.4.4 Evidence
7.4.5 Legal argumentation
7.4.6 Deficient statements of claim and procedural guidance by the arbitrators
7.4.7 Tactical considerations
7.5 Provisional measures
7.5.1 Introduction
7.5.2 Competence of the courts to order provisional measures
7.5.3 The competence of the arbitrators to order provisional measures
7.6 The statement of defence
7.7 The prerequisites for examining the case on its merits
7.7.1 Introduction
7.7.2 Courses of action available to the respondent if he considers the arbitrators to lack jurisdiction
7.7.3 The arbitral tribunal's jurisdiction to rule on its own jurisdiction
7.7.4 Impermissible claims
7.7.5 Legal capacity
7.7.6 Lispendens
7.7.7 Resjudicata
7.8 Submissions, oral preparations and the active role of the arbitrators
7.8.1 Introduction
7.8.2 The active role of the arbitrators
7.8.3 Clarification of the claims, grounds and objections
7.8.4 Investigation of the facts
7.8.5 Investigation of legal issues
7.8.6 Statements of evidence
7.8.7 Oral and written preparations
7.8.8 Principles of due process
7.8.9 Time limits and notices
7.8.10 Settlement
7.9 Means of coercion
7.10 Obstruction
7.10.1 Introduction
7.10.2 Need for the claimant and the arbitrators to actively counteract obstruction
7.10.3 The risks incurred by the respondent not playing an active role in the arbitral proceedings
7.10.4 Lawful excuse
7.10.5 Time extensions
7.10.6 Preclusion
7.10.7 The arbitrators' power to draw adverse inferences from a party's passivity or failure to comply with an order
7.11 Amendments of claims and defences
7.11.1 Introduction
7.11.2 The importance that the amendment refer to an issue which has a close or remote connection to the claims and grounds originally stated by the claimant
7.11.3 The respondent's own claims and set-off defences
7.11.4 Factors significant to the arbitrators' discretionary assessment
7.11.4.1 Challenge issues
7.12 Withdrawal and limitations of claims
7.13 The evidence
7.13.1 The responsibility of the parties with respect to the production of evidence
7.13.2 Admissibility of the evidence
7.13.3 The parties, their representatives and the witnesses
7.13.3.1 Introduction
7.13.3.2 Examination of the witnesses
7.13.4 Expert witnesses
7.13.4.1 The expert appointed by the arbitrators
7.13.4.2 The party-appointed experts
7.13.5 The written evidence
7.13.5.1 Introduction
7.13.5.2 Examination before the tribunal to determine document production
7.13.5.3 Disclosure orders by the arbitrators
7.13.5.4 Confidential information
7.13.5.5 The presentation of the written evidence
7.13.6 Computerised information
7.13.7 Site inspection
7.13.8 Court assistance in taking evidence
7.13.8.1 Introduction
7.13.8.2 Consent by the arbitrators
7.13.8.3 The court proceedings
7.13.9 The evaluation of the evidence
7.13.10 Burden of proof
7.14 The final hearing
7.14.1 Notices and extensions
7.14.2 The hearing