The Arbitration Agreement - Chapter 2 - 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.

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Originally From Arbitration Law of Sweden: Practice and Procedure

The Arbitration Agreement

2.1 Introduction

An arbitration agreement is an agreement between two or more parties1 to have arbitrators decide future disputes or an existing controversy in a final and binding award. The agreement must make clear what is to be decided, and it also has to indicate that the question or questions to which it refers are to be decided by arbitrators. In practice, there are no strict formal requirements in this respect, e.g. in the sense of expressly prescribing that a matter is to be decided in a binding manner by arbitrators.2 It is sufficient for the parties to make clear in some way that arbitration has been chosen as the procedure for resolving disputes, e.g. by stating that disputes shall be decided in accordance with the Arbitration Act.3

Since an arbitration agreement means that the parties renounce the procedural safeguards entailed by judicial proceedings and the right of appeal on the merits of the case, it has to be made quite clear that the agreement refers to arbitral procedure and not to any other kind of dispute-resolving mechanism.4 The agreement need not indicate which arbitrators are to examine the dispute, how they are to be appointed or how many arbitrators there are to be.5 The agreement has the effect of excluding the jurisdiction of the courts. Thus, the arbitration agreement has a derogative effect,6 albeit that a court will only dismiss a suit if the respondent has pleaded a bar to court proceedings.

Table of Contents:

Chapter 2 The Arbitration Agreement

2.1 Introduction

2.2 Non-arbitral forms of dispute settlement

2.3 Formation of the arbitration agreement

2.3.1 Standard contracts containing an arbitration clause

2.3.2 Formation of an arbitration agreement by passiveness under section 6(2) of the Contracts Act

2.3.3 Reference in a contract to another individually framed contract with an arbitration clause

2.3.4 Arbitration agreements entered into in the presence of arbitrators

2.4 The doctrine of separability

2.5 The scope of arbitration agreements

2.5.1 Restrictive or extensive interpretation

2.5.2 The theory of causality and the doctrine of assertion

2.5.3 Interpretation of arbitration agreements in the light of the substantive contract

2.5.4 Related contentious issues which are only partly covered by a clearly applicable arbitration clause

2.6 Interpretation of special provisions in arbitration clauses

2.7 The binding effect of arbitration agreements on third parties

2.7.1 Introduction

2.7.2 Dispute as to whether a legal subject is a contracting party

2.7.3 Universal succession

2.7.4 Bankruptcy

2.7.5 Singular succession

2.7.6 Guarantee and other joint and several liability for payment

2.7.7 The statutory joint and several liability of a third party for a contracting party's obligation

2.8 Invalidity of arbitration agreements

2.8.1 General remarks on section 36 of the Contracts Act

2.8.2 Invalidity as a result of special provisions in the arbitration clause

2.8.3 Rules of invalidity other than those of section 36 of the Contracts Act

2.9 Termination of the arbitration agreement

2.10 One party' s loss of the right to assert an arbitration agreement

2.11 Special provisions in arbitration clauses

2.12 Arbitrability

2.13 Civil law effects of competition law

2.14 Filling gaps

2.15 Competence of arbitrators to establish matters of fact and to make legal characterisations

2.16 Provisions on arbitral procedure in articles of association and testatory dispositions