Navigating in the Archipelago of Swedish Due Process Safeguards: A Sea Chart indicating a Few Treacherous Reefs - SIAR 2009-2
Finn Madsen, Partner at Vinge, Sweden and author of Commercial Arbitration in Sweden, published by
Oxford University Press, 2007. Finn Madsen was awarded a Honorary Doctorate at the legal
faculty of Lund University, Sweden, in January 2011. The author is grateful to James Hope
for his useful comments on previous drafts of this article. The ideas expressed in this article
reflect solely the opinion of the author.
Originally from: Stockholm International Arbitration Review
NAVIGATING IN THE ARCHIPELAGO OF SWEDISH DUE PROCESS SAFEGUARDS: A SEA CHART INDICATING A FEW TREACHEROUS REEFS
The concept that the parties to international arbitrations are at liberty to control their process and tailor it to the needs of their dispute free from the constraints of procedural rules or principles at the seat of the arbitration constitutes one of the foundations of international arbitration. In practice, however, in most cases the parties do not exercise this freedom to any real extent, at least not before a dispute has arisen. In most cases, the parties are content to reach an agreement on the broad outline of the arbitral process by way of reference to institutional rules or to reach agreement on a few specific issues. Even after a dispute has arisen, the parties tend to leave determination of the procedure to the arbitral tribunal’s discretion. Thus, it is only natural that most arbitration rules give arbitrators broad discretion to fashion the process as they see fit. The issue that this article intends to explore is whether, and if so to what extent, an arbitral tribunal is required to take into consideration any specific Swedish procedural rules of law when sitting in an international arbitration in Sweden.
In Sweden as elsewhere in the developed world of arbitration, arbitrators enjoy more or less unfettered discretion when dealing with procedural issues. As long as they adhere to the agreement of the parties and stay within the broad parameters imposed by fundamental due process safeguards, such as fairness to the parties, limits on arbitral mandates and respect for mandatory rules, awards are unlikely to be annulled or successfully challenged on procedural grounds.
The contents of the Swedish Arbitration Act ("SAA"), which is the lex arbitri of arbitrations in Sweden, closely resemble those of the UNCITRAL.