Originally from The Swedish Arbitration Act of 1999, Five Years On: A Critical Review of Strengths and Weaknesses

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In her excellent report for the session on arbitrators, Ms. Carita Wallgren discusses the problem of hearing arbitrators as witnesses within the context of two Svea Court of Appeal judgments, namely, CME Czech Republic B.V. v. Czech Republic, and Kazakhstan Republic v. MTR Metals Ltd.

Ms. Carita Wallgren concludes that court hearings about arbitrators’ deliberations, though necessary in certain cases, “does constitute a strong interference with the inviolate nature of arbitral deliberations”,  and “very detailed subsequent court review of arbitral deliberations”, as that in CME case,  “might risk impeding the free flow of thoughts and creativity among arbitrators in order to reach the ‘right’ result as to the merits of the dispute”,  because with extreme focus on procedural matters “arbitrators may find less time and energy to devote to the merits of the dispute that they have been chosen to resolve”. 

I have been asked to give comments regarding the topic of hearing arbitrators as witnesses. My general overall comment is that the hearing of arbitrators as witnesses might not be as inviolate or disturbing as suggested by Ms. Carita Wallgren.

I. NECESSITY TO HAVE JUDICIAL REVIEW OF ARBITRAL AWARDS ON PROCEDURAL GROUNDS

Judicial review on procedural aspects of arbitral proceedings is surely necessary. In most countries now arbitral awards are not challengeable before courts on the merits. And thanks to the New York Convention and UNCITRAL Model Law, recognition and enforcement of arbitral awards have become much easy.