Originally From Arbitration Law of Sweden: Practice and Procedure

International Matters

12.1 Introduction

A party to an international commercial contract usually wants to avoid having future disputes decided by the courts in the country where the opposing party is domiciled. The parties realise that a dispute resolution system must be neutral from both parties’ perspective to be accepted by an agreement. If the parties contemplate referring future disputes to arbitration in a certain country under the national act of that country, the proceedings may be more familiar and attractive to one party than the other. In order to create a totally neutral mechanism for dispute resolution, the parties may wish to make the arbitral proceedings independent of all national regulation. This could be achieved by basing the proceedings entirely on an agreement between the parties and by having the arbitral tribunals apply universally accepted legal principles of a supranational character, instead of a national civil law and national choice-of-law rules. Questions concerning the validity and scope of the arbitration agreement can also be resolved with reference to universally accepted legal principles and not by a national arbitration act. International literature refers in this context to stateless, delocalised or a-nationalised arbitrations.1 The efforts by the parties or the legislature to exclude or limit the rights of national courts to intervene in the proceedings can be seen as an attempt to create an autonomous system for resolving arbitration disputes.

The notion of a-nationalised arbitration in its absolute form has not had much impact on Swedish legislation. The Swedish Arbitration Act is not characterised by efforts to limit the national regulation and scope for judicial intervention in international disputes compared to domestic controversies.2 Instead, its provisions bear the imprint of the territorial principle in a number of respects. This principle prescribes that the Act shall be applied in proceedings taking place in Sweden. Furthermore, Swedish courts can intervene in such proceedings, if a party so requests, but only when there is statutory support for court assistance. Even so, the framing of many rules is perfectly compatible with the endeavour to make the proceedings independent of national regulation or at least to substantially reduce the influence of specifically national principles.