Invalidity of Awards and the Setting Aside of Awards - Chapter 10 - 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.
Originally From Arbitration Law of Sweden: Practice and Procedure
Invalidity of Awards and the Setting Aside of Awards
10.1 Introduction
Arbitration is aimed at quickly and economically resolving disputes so that the award is final and binding without the matter becoming public knowledge. From this point of view, it is important that the arbitration should not be followed by protracted, expensive and public judicial proceedings for a conclusive ruling on the binding effect of the award.1 For this reason, an arbitration award in Sweden, as in all states with advanced legal systems, cannot be reviewed by a court on the merits. By entering into an arbitration agreement, the parties are presumed to have relinquished the right to have the award reviewed on the grounds that the arbitrators have misjudged the case on the merits.2 Therefore it is very important that the arbitrators should meticulously comply with the few basic rules of due process which contribute to a correct dispute resolution. It is unacceptable that arbitration awards resulting from gross procedural irregularities should endure without the aggrieved party being able in any way to bring about an amendment. Otherwise, arbitral procedure could fall into disrepute.3 This in turn could result in parties avoiding the inclusion of arbitration clauses in their business contracts, despite the many great advantages of arbitral procedure.4
The arbitrators are doubtless at pains to handle disputes correctly, not least considering the unpleasant position they can find themselves in if their professional acumen is called into question after a court has set aside the award they have delivered. In addition, the arbitrators may lose their fees, and future mandates may pass them by if the judgment in the challenge case comes to the knowledge of the initiated group of arbitration lawyers. The arbitrators’ professional reputation is at stake.
Careful, well-prepared procedure often helps to ensure that the substantive issues are correctly decided. There is, however, some risk that the arbitrators will concentrate their energy on judging procedural questions correctly and, due to a shortage of time or to sheer idleness, make less of an intellectual effort to penetrate certain substantive issues.5
Chapter 10 Invalidity of Awards and the Setting Aside of Awards
10.1 Introduction
10.2 The mandatory nature of the rules of challenge and the principle of in dubio pro validitate
10.3 The burden of proof
10.4 Does the award have legal force after it has been attacked in avoidance or challenge proceedings?
10.5 Irregularities committed by bodies other than the arbitral tribunal
10.6 Avoidance proceedings
10.6.1 Introduction
10.6.2 Lack of arbitrability
10.6.3 Public policy
10.6.3.1 Procedural public policy
10.6.3.2 Substantive public policy
10.6.4 The requirement that the award shall be in writing and signed
10.7 Challenge proceedings
10.7.1 The dispute is not covered by a valid arbitration agreement between the parties
10.7.2 Going beyond submission
10.7.2.1 Introduction
10.7.2.2 The functions of the challenge rule
10.7.2.3 The causal requirement
10.7.2.4 Irregularities and excesses of mandates caused by the challenging party's negligence during the arbitration
10.7.2.5 The mandate concept
10.7.2.6 The borderline between misjudgments on the merits and exceeding the mandate
10.7.2.7 Award delivered after the expiry of the respite allowed for it
10.7.3 The arbitral proceedings took place in Sweden, contrary to section 47
10.7.4 An arbitrator has been appointed contrary to the agreement between the parties or the Swedish Arbitration Act
10.7.5 Arbitrators who lack legal capacity or are disqualified
10.7.6 The general clause
10.7.6.1 Introduction
10.7.6.2 The requirement that the irregularity probably affected the outcome
10.7.6.3 The requirement that the challenging party did not negligently cause the irregularity
10.7.6.4 The requirement that a procedural irregularity was committed
10.7.7 Preclusion
10.7.8 Respite for filing a challenge action
10.7.9 Court procedure in challenge cases
10.8 Remission
10.9 Actions against awards whereby the proceedings have been terminated without any ruling on the merits