Originally from The Swedish Arbitration Act of 1999, Five Years On: A Critical Review of Strengths and Weaknesses

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I. INTRODUCTION

This commentary contains a review on some practical problems arbitrators frequently face when determining issues relating to the proceedings; mainly with regard to the fact that the principles on which the Swedish Arbitration Act (the Act) is based sometimes are in conflict with each other.

The principle — for example — that the arbitrators have an obligation to ensure that the proceedings are conducted in a fair, speedy and practical manner is sometimes in conflict with the principle that each party shall have a fair opportunity to present its case. As described below such conflicts occur for example in ex-parte proceedings and in simplified and expedited proceedings.

The commentary contains further comments on the issue of “Respondent’s right to an award when claimant withdraws its case” and the issue of “whether there are remedies available where an arbitral award is based on false testimony or false documents.”

II. EX–PARTE PROCEEDINGS

It occurs from time to other that the respondent decides not to participate in the proceedings. Omittance to participate includes normally a great risk as an enforceable award can be rendered despite such fact. A decision not to participate should therefore be based on a certainty that the arbitrators are lacking competence or that the award can be nullified due to a serious mistake by the arbitrators. 

Provided that there is a valid arbitration agreement it is the arbitrators’ duty to render an award if a party so requests even if the opposite party has failed to plead his case. The award shall be based on the existing material, i.e. on the merits and evidence actually presented (Section 24 (3) of the Act).