Originally from Between East and West: Essays in Honour of Ulf Franke

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I. INTRODUCTION

The Swedish Arbitration Act (SAA) is based on the UNCITRAL Model Law. Several of the provisions in the SAA are in accordance with the corresponding articles in the Model Law, but others diverge more or less from the articles in the Model Law. The differences are sometimes only linguistic, for example the difference between some of the grounds for challenging awards. As the Model Law is adopted in many countries and well-known in the arbitration world, it would be easier for foreign contracting parties to understand the meaning of a clause providing for arbitration in Sweden if the Model Law were applied according to the clause. Could such Model Law clauses be effective?

Under the principle of party autonomy, parties ought to be entitled to agree on the applicability of the Model Law. To the extent the SAA contains mandatory provisions, these cannot be derogated from by agreement. However, generally the Model Law contains rules corresponding to the mandatory provisions in the SAA. Fundamental principles of natural justice are reflected in both laws. The principle of party autonomy does not apply to court procedure, unless the Swedish Code of Procedure expressly authorises the parties to make procedural agreements. Even if no such provisions exist in the Code, it is possible that procedural agreements are accepted if they facilitate the court procedure or at least do not make adjudication more complicated for judges. For example, a contract clause placing the burden of proof on a party is effective under Swedish law despite no support for this in the Code. Presumably there is no party autonomy in cases where the parties want to amend the court procedure for setting aside awards or the procedure for court intervention.