COMMENTS ON THE SWEDISH SUPREME COURT’S RECENT JUDGMENT ON THE SO-CALLED “DOCTRINE OF ASSERTION” AND THE ARBITRATORS’ JURISDICTION IN INVESTMENT DISPUTES - Stockholm International Arbitration Review (SIAR) 2008 No. 3
The Swedish Supreme Court recently set aside that part of a Swedish arbitral award, made in February 2003 in an arbitration between Petrobart and the Kyrgyz Republic, in which the arbitral tribunal dismissed the arbitration for lack of jurisdiction (“Petrobart”). Under the Swedish Arbitration Act, such a negative ruling on jurisdiction is made in an award and it is subject to appeal in court (Sections 2, 27 and 36 of the Act). Contrary to the Svea Court of Appeal, the Supreme Court held that the tribunal should have applied the so-called “doctrine of assertion” when determining the issue whether it had jurisdiction under the arbitration clause contained in the Law of the Kyrgyz Republic on Foreign Investments in the Kyrgyz Republic (the “Foreign Investment Law”).
In this paper, I comment on the Supreme Court judgment, as far as it deals with the doctrine of assertion and the tribunal’s jurisdiction, which in part may not be so easily done, given the judgment’s brief reasons. I will first describe the Petrobart arbitration, the Svea Court of Appeal judgment, and the Supreme Court judgment. Then, I will touch upon some cases on special courts’ jurisdiction referred to in the Supreme Court judgment. I will also comment on Justice Stefan Lindskog’s and Professor Lars Heuman’s leading commentaries on Swedish arbitration law, both of which were referred to by the Supreme Court. To better understand the judgment, I will also deal with a couple of articles referred to by Lindskog in his separate opinion, which, apart from Swedish law, briefly comment on some foreign (i.e., non-Swedish) courts’ jurisdictional approaches. After illustrating potential jurisdictional approaches in a couple of non-Swedish investment arbitrations, and touching upon the investment cases SwemBalt and Nagel, I set forth my specific comments on the Supreme Court judgment and Justice Lindskog’s separate opinion, as well as my conclusions, in the final section of this paper.