Corruption and Arbitration: Swedish Perspectives Against a French Backdrop

Abstract

Corruption is an unwanted reality from which arbitration is not spared. Many of the most common business sectors in arbitration are the most exposed to corruption; such as, construction, infrastructure, defence and natural resources. There is a risk that dubious parties will try to find a ‘safe haven’ in arbitration by exploiting the privacy and integrity of arbitration proceedings.
           In most jurisdictions, corruption falls under the concept of international public policy (or ordre public international), the violation of which will render an award invalid or unenforceable. If contested, a national court will review the award, but the depth of the review differs among jurisdictions. Some jurisdictions have adopted a minimalist approach (e.g., Switzerland and the United Kingdom), while others have adopted a maximalist approach (e.g., France and the Netherlands). The minimalist approach can be defined as a review based only on the facts established in the award. This excludes the possibility to correct or supplement the arbitrators’ findings ex officio, even if such facts were established in a manner that is manifestly incorrect or contrary to the law. The maximalist approach allows a court to go beyond the findings laid down in the award. The maximalist approach is neither limited to the evidence produced before the arbitrators nor bound by their findings, assessments or qualifications.
           Using French case law as a comparative backdrop, this chapter seeks to study whether Swedish courts lean towards the minimalist or the maximalist approach, and to what extent Swedish law puts a duty of activity on arbitrators to raise issues regarding corruption ex officio and on their own initiative (sua sponte).