Swedish Arbitration Act of 1999, Five Years On: A Critical Review of Strengths and Weaknesses
In 2004, Sweden's Arbitration Act of 1999 was five years old. Inspired by UNCITRAL's Model Law while perpetuating features of the 1929 Act, it introduced many new concepts, such as establishing rules to determine the law applicable to the agreement to arbitrate, authorizing the arbitrators to decide the existence of facts and to fill gaps in contracts, making competition law issues arbitrable, affording the respondent the right to have the dispute resolved if the claimant withdraws its claim, authorizing truncated tribunals where an arbitrator obstructs the work of the tribunal. The new Act further gives arbitrators power to decide interim measures of protection and accepts that foreign parties waive in advance the possibility to set aside the arbitral award.
In order to learn about the experience of Swedish and foreign practitioners, arbitrators and judges during the five years since the Act was adopted, the Stockholm Arbitration Report and the Institute of Arbitration Law at the University of Stockholm, organized a symposium on 7 and 8 October 2004.
The symposium, was arranged in co-operation with the Arbitration Institute of the Stockholm Chamber of Commerce (SCC), the China International Economic and Trade Arbitration Commission (CIETAC), the Hong Kong International Arbitration Centre (HKIAC), the ICC International Court of Arbitration, the International Centre for Dispute Resolution (ICDR), the International Commercial Arbitration Court at the CCI of the Russian Federation, JAMS, the London Court of International Arbitration (LCIA), Revue de l'arbitrage, the Swedish Bar Association and UNCITRAL.
This book contains the papers presented to the six working sessions and the full discussions that took place.
PDF of Title Page and T.O.C.
Foreword
Abbreviations
Introduction by Sigvard Jarvin and Lars Heuman
Chapter 1
The Arbitration Agreement as a Matter of Swedish Contract Law
Eric M. Runesson
Introduction
II. To Become Bound by a Swedish Arbitration Agreement with Particular Regard to a Reference to Standard Conditions
III. Determining the Rights and Obligations Under an Arbitration Agreement
IV. Rules and Principles Applicable to the Transfer of Arbitration Agreements and the Assignment of Claims Covered by an Arbitration Agreement
V. Expiry of Rights and Obligations Under an Arbitration Agreement and the Implied Modification of Its Scope
V. Alterative Solutions (To the Swedish Solution)
VI. Conclusion and Proposals
Eric Runesson
Christoher Seppälä
Robert Davidson
Axel Baum
I. Introduction
II. Issues to Be Discussed
III. Applicable Law to Issues of Arbitrability
IV. Applicable Law on the Merits
V. Ordre Public Issues with a Focus on Competition Law
VI. Summary
List of Authorities
Bibliography
Separability Of The Arbitration Agreement And Choice Of Law
David Goldberg
I. Applicable Law of the Agreement to Arbitrate
II. The Law Governing the Substantive Rights of the Parties
III. Summary
I. Introduction
II. The Applicable Law on the Arbitration Agreement
III. Applicable Law on Procedure
IV. Applicable Law on Arbitrability
V. Applicable Law on the Merits
VI. "Jura Novit Curia"
Claes Zettermarck
Tim Taylor
Gunnar Nerdrum
Panel Discussion
Nils Eliasson
I. Introduction
II. Application Scope
III. Arbitration Agreement
IV. Jurisdictional Challenge
V. Arbitrator
VI. Interim Measures of Protection
VII. Arbitration Ex Aequo Et Bono
VIII. Recourse Against Award
IX. Concluding Remarks
I. Introduction
II. Procedural Principles and Rules
III. Lis Pendens
IV. Interim Relief
V. Court-Assisted Evidence Taking
VI. Amendments to Claims and Defenses
VII. Confidentiality Issues
VIII. Conclusion
Chapter 19
Comments On The Problem Of Hearing Arbitrators As Witnesses
Johan Gernandt
I. Necessity to have Judicial Review of Arbitral Awards on Procedural Grounds
II. Among Various Judicial Interventions, Arbitrators are only Personally and Directly Involved in Limited Situations
III. With Respect to Setting-Aside Specifically, the Need for Hearing Arbitrators as Witnesses Is also Limited by the Nature of Grounds of Setting-Aside
IV. Disturbance to Arbitrations Caused by Hearing Arbitrators as Witnesses Ought to Be Limited by Certain Legal and Practical Considerations V. Contractual Waiver of the Right to Call the Arbitrators as Witnesses?
VI. Some Suggestion to Create a Record of Procedure
VII. Concluding Remarks
Chapter 21
Comments on Confidentiality
Kaj Hobér
I. Comparative Survey
II. Confidentiality in Sweden
I. Introduction
II. Summary
III. Subjects to Be Discussed
IV. Award v. Decision
V. Determination of Withdrawn Claim
VI. Majority Vote
VII. Invalidity
VIII. Conclusion
Claes Lundblad, Chair
David St. John Sutton
Alexander Komarov
Filip De Ly
Lars Heuman is Professor of Civil and Procedural Law and Director 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.
Sigvard Jarvin is Counsel to Jones Day in Paris and has been involved in more than 175 international arbitrations. Mr. Jarvin is also a member of the board of the Institute of Arbitration Law at Stockholm University and a member of the ICC Commission on Arbitration and the International Arbitration Club, London. He also chaired the ICC working party revising the ICC/CMI Maritime Arbitration Rules (1997-1998). Mr. Jarvin was General Counsel to the ICC International Court of Arbitration, Paris (1982-1987) and member of the Court (1988-1995).
Contributors Include:
Lars Heuman is Professor of Civil and Procedural Law and Director 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.
Sigvard Jarvin is Counsel to Jones Day in Paris and has been involved in more than 175 international arbitrations. Mr. Jarvin is also a member of the board of the Institute of Arbitration Law at Stockholm University and a member of the ICC Commission on Arbitration and the International Arbitration Club, London. He also chaired the ICC working party revising the ICC/CMI Maritime Arbitration Rules (1997-1998). Mr. Jarvin was General Counsel to the ICC International Court of Arbitration, Paris (1982-1987) and member of the Court (1988-1995).
Contributors Include:
PDF of Title Page and T.O.C.
Foreword
Abbreviations
Introduction by Sigvard Jarvin and Lars Heuman
Chapter 1
The Arbitration Agreement as a Matter of Swedish Contract Law
Eric M. Runesson
Introduction
II. To Become Bound by a Swedish Arbitration Agreement with Particular Regard to a Reference to Standard Conditions
III. Determining the Rights and Obligations Under an Arbitration Agreement
IV. Rules and Principles Applicable to the Transfer of Arbitration Agreements and the Assignment of Claims Covered by an Arbitration Agreement
V. Expiry of Rights and Obligations Under an Arbitration Agreement and the Implied Modification of Its Scope
V. Alterative Solutions (To the Swedish Solution)
VI. Conclusion and Proposals
Eric Runesson
Christoher Seppälä
Robert Davidson
Axel Baum
I. Introduction
II. Issues to Be Discussed
III. Applicable Law to Issues of Arbitrability
IV. Applicable Law on the Merits
V. Ordre Public Issues with a Focus on Competition Law
VI. Summary
List of Authorities
Bibliography
Separability Of The Arbitration Agreement And Choice Of Law
David Goldberg
I. Applicable Law of the Agreement to Arbitrate
II. The Law Governing the Substantive Rights of the Parties
III. Summary
I. Introduction
II. The Applicable Law on the Arbitration Agreement
III. Applicable Law on Procedure
IV. Applicable Law on Arbitrability
V. Applicable Law on the Merits
VI. "Jura Novit Curia"
Claes Zettermarck
Tim Taylor
Gunnar Nerdrum
Panel Discussion
Nils Eliasson
I. Introduction
II. Application Scope
III. Arbitration Agreement
IV. Jurisdictional Challenge
V. Arbitrator
VI. Interim Measures of Protection
VII. Arbitration Ex Aequo Et Bono
VIII. Recourse Against Award
IX. Concluding Remarks
I. Introduction
II. Procedural Principles and Rules
III. Lis Pendens
IV. Interim Relief
V. Court-Assisted Evidence Taking
VI. Amendments to Claims and Defenses
VII. Confidentiality Issues
VIII. Conclusion
Chapter 19
Comments On The Problem Of Hearing Arbitrators As Witnesses
Johan Gernandt
I. Necessity to have Judicial Review of Arbitral Awards on Procedural Grounds
II. Among Various Judicial Interventions, Arbitrators are only Personally and Directly Involved in Limited Situations
III. With Respect to Setting-Aside Specifically, the Need for Hearing Arbitrators as Witnesses Is also Limited by the Nature of Grounds of Setting-Aside
IV. Disturbance to Arbitrations Caused by Hearing Arbitrators as Witnesses Ought to Be Limited by Certain Legal and Practical Considerations V. Contractual Waiver of the Right to Call the Arbitrators as Witnesses?
VI. Some Suggestion to Create a Record of Procedure
VII. Concluding Remarks
Chapter 21
Comments on Confidentiality
Kaj Hobér
I. Comparative Survey
II. Confidentiality in Sweden
I. Introduction
II. Summary
III. Subjects to Be Discussed
IV. Award v. Decision
V. Determination of Withdrawn Claim
VI. Majority Vote
VII. Invalidity
VIII. Conclusion
Claes Lundblad, Chair
David St. John Sutton
Alexander Komarov
Filip De Ly