The (Swedish) Doctrine of Assertion: And the Scope of the Arbitration Agreement

Abstract

The scope of the arbitration agreement is central to the arbitral jurisdiction. It concerns the issue of the subject matter ambit (ratione materiae) of a binding arbitration agreement. The scope of the arbitration agreement is considered a question of interpretation that is to be determined according to the civil law rules and principles on contract interpretation. In that sense, the arbitration agreement is an expression of the common intention of the parties to submit to arbitration instead of litigation; it is an exercise of party autonomy, by means of which the parties waive the right of access to court. Another significant factor concerns the identity of the matter in dispute. Arbitral jurisdiction requires that the actual dispute constitutes a type of dispute covered by the scope. This implies that it is necessary to establish what the matter in dispute concerns. Under Swedish law, the civil procedural law principle denoted ‘påståendedoktrinen’ (the doctrine of assertion) is considered applicable when identifying the matter in dispute significant to the competence of the arbitral tribunal.