The Arbitral Award (SAR) 1999-1
Gustaf Möller, Justice and Member of the Supreme Court of Finland; Chairman of the Finnish Arbitration Association and Vice-Chairman of the Board of Arbitration of the Finnish Central Chamber of Commerce.
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Preview Page SAR 1999- 1
The principal provisions relating to the award are contained in Sections 27 to 32 of the new Arbitration Act, referred to below as the Act, under the heading "The Award". The provisions of the Act on this subject are far more detailed than the corresponding provisions in the old Swedish Arbitration Act of 1929 and are also in some respects different in substance. The provisions differ in some respects from those contained in the UNCITRAL Model Law, referred to below as the Model Law.
Further the provisions regarding awards in the new Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, referred to below as the SCC Rules, are much more detailed than the corresponding provisions in the old SCC Rules of 1988. They shall be reviewed below together with the corresponding provisions of the Act.
2. Rules Applicable to the Substance of the Dispute
Under the Model Law the Arbitral Tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute, see Article 28 (1). Failing any designation by the parties, the Arbitral Tribunal shall apply the law determined by the conflict of laws rules which it considers applicable, see Article 28 (2). The Arbitral Tribunal shall decide ex aequo et bono or as amiable compositeur only if the parties have expressly authorised it to do so, see Article 28 (3). In all cases, the Arbitral Tribunal shall decide in accordance with the terms of the contract and shall also take into account the usages of the trade applicable to the transaction, see Article 28 (4).
As in the old Swedish Arbitration Act of 1929, there are no provisions on rules applicable to the substance of the dispute in the Act. There seems, however, to be a consensus among Swedish lawyers that the Arbitral Tribunal shall base its decision on the applicable law, unless the parties have otherwise agreed. There seems further to be no doubt that the Arbitral Tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute. The parties may certainly direct the arbitrators to decide the matter ex aequo et bono or to act as amiables compositeurs, but unless the parties have expressly done so, the Arbitral Tribunal will base their decision on the applicable law1.