Preserving Evidence in Arbitration Proceedings: From a Swedish and Norwegian Perspective

Abstract

The outcome of the majority of commercial disputes depends on the evidence presented during the proceedings. Consequently, access to evidence is a crucial aspect of almost every dispute. This includes preserving evidence which may be at risk of deteriorating or being lost. This chapter discusses the possibility of requesting court assistance to secure evidence prior to the commencement of arbitration proceedings – an opportunity that may have been overlooked in the past.
Requesting assistance from courts to preserve evidence prior to filing suit is regulated in many jurisdictions and is fairly uncontroversial with respect to court litigation. However, the matter is not clearly regulated with regard to arbitration proceedings. This has caused uncertainty as to whether it is possible for parties to request such assistance from the courts.
The purpose of this chapter is to examine whether parties who are bound by an arbitration agreement may request assistance from the general courts to secure evidence prior to the initiation of the arbitration. The chapter examines the issue under both Swedish and Norwegian law. The reason for the comparative perspective is that the relevant legislation is very similar in Sweden and Norway. However, legal scholars have approached the issue differently in the two countries, and this provides for an interesting comparison. The comparative aspect is also compelling because the issue has been a subject of dispute in some fairly recent lower court decisions in Norway. In Sweden, on the other hand, the relevant court decisions are from the Supreme Court, but the rulings are quite old.