Originally from Iura Novit Curia in International Arbitration

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I. INTRODUCTION

The legal maxim jura novit curia (literally, “the court knows the law”) provokes rather strong reactions.  To some, it is an important part of the duty of the court to apply the law to the facts that have been presented to it.  To others, it is anathema for a court to apply the law of its own motion, without apparent regard to the legal arguments that have been made by the parties.

Whilst a court can rely upon its own practices and traditions, an arbitrator cannot do so to the same extent.  Accordingly, when applied to arbitration, the maxim jura novit arbiter (“the arbitrator knows the law”) can give rise to even greater concerns, particularly in the context of international arbitration.

In preparing this article, we considered jura novit arbiter in the following situations: 

a) The arbitral tribunal’s power to draw its own legal inferences from the factual basis established by the parties; 

b) The arbitral tribunal’s power to apply the governing law to interpret, construe, supplement or correct the contract;

c) The arbitral tribunal’s power to apply the legal sources it deems applicable, even if not designated or pleaded by the parties; and 

d) The arbitral tribunal’s power to order, independently from the parties’ pleadings, the remedies that follow from the sources of law which the arbitral tribunal deems applicable.

In this article, we first provide a brief overview of the primary sources of Swedish arbitration law and of Swedish arbitral institutions (part II).  We then discuss jura novit arbiter as applied in Swedish law (part III). We set out some conclusions in part IV.