Navigating in the Archipelago of Swedish due Process Safeguards: A Sea Chart Indicating a Few Treacherous Reefs - Chapter 5 - International Arbitration and Public Policy

Author(s):

Finn Madsen

Page Count:

24 pages

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Published:

October, 2014

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I. BACKGROUND

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