Forskare knutna till SCCL publicerar sina forskningsresultat i en stor mängd artiklar och forskningsrapporter. Ambitionen är att så mycket som möjligt av det som publiceras av dessa forskare samt av föredragshållare vid större seminarier och konferenser anordnade av SCCL också ska finnas tillgängligt i open access på SCCL (https://publications.sccl.se). Beroende på omständigheter och avtal med förlag kan dock detta komma att ske först en viss tid efter ursprunglig publicering. Efter medgivande från skribenter och andra rättighetsinnehavare har vi initialt digitaliserat och gjort tillgängligt det mesta av det som publicerats i de böcker som SCCL givit ut sedan 2008. Detta omfattar idag över 300 artiklar författade av forskare knutna till SCCL. Efterhand kommer antalet digitalt tillgängliga artiklar att öka. Sökfunktionen i menyn ovan gör det möjligt att söka artiklar såväl i fritext som efter författare eller efter den bok i vilken artikeln ursprungligen publicerades. På sidan ”Författare” finns en förteckning över samtliga författare till de artiklar som digitaliserats och på sidan ”Böcker” finns en förteckning över de böcker som digitaliserats. Utöver digitalisering och tillgängliggörande av forskningsresultat på hemsidan kommer SCCL att fortsätta att ge ut böcker inom ramen för SCCL:s skriftserier. Denna omfattar dels SCCL:s årsbok, dels sammanställningar av bidrag till specifika konferenser och helt separata skrifter. I anslutning till skriftserien publicerar SCCL även festskrifter som har anknytning till SCCL. SCCL har ett omfattande bibliotek i sina egna lokaler, vilket startades genom en donation av framlidne professorn Jan Hellner och genom övertagande av Institutet för bolags- och värdepappersrätts bibliotek. Biblioteket har därefter byggts ut genom diverse omfattande donationer. Sedan 2024 ingår Axel Ax:son Johnsons institut för sjö- och annan transporträtt som en forskningsavdelning vid SCCL https://sccl.se/forskningsavdelningar/. Sjörättsinstitutet har dels ett omfattande fysiskt bibliotek som finns i SCCL:s lokaler, dels ett digitalt bibliotek som finns tillgängligt på institutets hemsida https://www.sjorattsbiblioteket.se/om-institutet
Arbitration and Public Procurement: A Match?
In 2020, the annual turnover of the sectors subject to public procurement in Sweden alone exceeded SEK 800 billion. There is, therefore, no question that public procurement plays a major role in the Swedish economy. The aim of the public procurement rules is to govern the procurement process from ‘A–Z’, i.e., from the first decision of the contracting authority to commence a procurement, all the way through to the establishment of a contractual relationship between the contracting authority/entity and the winning bidder but, ever since the rules were first introduced in the early 1990s, they have repeatedly been accused of being complex and inflexible.
Corruption and Arbitration: Swedish Perspectives Against a French Backdrop
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).
Ensuring Continuity of Contracts: Enforcing Self-Cleaning as a Tool to Combat Corruption Through Arbitration
The arbitration law scholarship includes a great number of corruption-related writings. However, what is an uncovered area is the application of arbitration for enforcing self-cleaning. Self-cleaning is a term used especially in public procurement law but may be applied for other corporate compliance purposes relating to restoring reliability. This article introduces a novel approach to apply the principle of self-cleaning in an arbitration context by examining whether contracts and the business relationship can be saved by the parties’ action in cases where corruption is evident by analyzing the applicability of arbitration as a method of self-cleaning for rehabilitation. Based on our findings, we demonstrate how this is possible. In the last ten years, contractual approaches to fight corruption have emerged and these apply the principle of proportionality to the need to call a contract terminated in case corruption is discovered. We are using the landmark International Chamber of Commerce (ICC) Anti-Corruption Clause 2012 (“the ICC Anti-Corruption Clause”) as an example. The ICC Clause purports to preserve the validity and continuity of the contract by providing remedies to the violations of the ICC Rules on Combatting Corruption 2011 (“ICC Anti-Corruption Rules”). The parties of a contract adhere to these Rules explicitly with a view to create an impact on their relationship. The key idea is that a party to a contract could, in many, although not all, cases remedy its breach of contract constituted by not adhering to the Rules.
The Subjective Scope of Arbitration Agreements under Norwegian and Danish Law
Privity of contract is recognized as a general doctrine across the Nordic countries. The doctrine limits the subjective scope of an agreement to the contracting parties. Accordingly, an agreement between A and B binds A and B; it does not bind C. Arbitration agreements are subject to the doctrine as well. If A and B have agreed to resolve their disputes arising out of X by arbitration, A may not initiate arbitration against C on the basis of A’s agreement with B, and, vice versa, C may not initiate arbitration against A on that basis. Reality is more complicated than the A-B-C example above. The subjective scope of agreements, including arbitration agreements, gives rise to frequent disputes, and the doctrine of privity does not always provide clear answers. Under some circumstances, C may be deemed a party to the agreement despite the fact that C did not initially sign and accept the agreement. Under other circumstances, the agreement is applicable to C even though C is not a party to the agreement.
Dispute Resolution by ‘Expert Decisions’: Illustrated by the Norwegian Expert Procedure and the SCC Express
Arbitration is the preferred dispute resolution mechanism for disputes in international contracts. The typical feature of alternative methods for dispute resolution is that they aim to enable the parties to resolve their dispute faster and in a more cost-efficient manner. Swift dispute resolution may be vital in certain contracts, typically in long-term contracts where a pending dispute may complicate or even undermine the essential spirit of cooperation. For example, disputed variation orders (DVOs) between a Contractor and its client may disrupt their cooperation and strain the liquidity of the Contractor. Similarly, disputes between the parties to a joint venture agreement may cause a deadlock, which again may lead to a most unfortunate outcome where the joint venture cannot fulfil its obligations to the end client. A full-scale arbitration process is rarely cost-efficient and proportional in minor disputes.
Paradigm Shift: Reflections on the Interpretation of International Investment Agreements by National and Supranational Courts Post-Achmea
The Court of Justice of the European Union (CJEU or the Court) in Republic of Moldova v. Komstroy, Case C-741/19, was called upon to answer the questions posed by the Paris Cour d’Appel, essentially addressing the interpretation of the notions of ‘investment’ and ‘investor’ under Article 1(6) and 1(7) of the Energy Charter Treaty (ECT), even though the underlying case had no immediate qualifications for the jurisdiction of the CJEU. National courts undertake the interpretation of international investment agreements (IIAs) in connection with the set aside or recognition and enforcement of investment arbitration awards. For example, the Paris Cour d’Appel in Venezuela v. Serafín García Armas and Karina García Gruber has set aside an investment arbitration award, deciding that the definitions of ‘investment’ and ‘investor’ in the Spain- Venezuela Bilateral Investment Treaty (BIT) required that assets were ‘invested by investors’ of the other contracting State and, hence, that investors must satisfy the nationality requirement when making the investment. In Clorox Spain S.L. v. Venezuela, the Swiss Federal Tribunal set aside an investment arbitration award noting that Article 1(2) of the Spain-Venezuela BIT reflects an asset-based definition of the notion of ‘investment’, and that the relevant BIT does not include a denial of benefits clause, nor additional requirements in establishing the nationality of an investor, which could justify the interpretation of the notion of ‘investment’ in a narrow sense, with emphasis on the wording ‘invested by investors’.
The Public International Law Significance of the Ascom Case
On November 18, 2021, the Swedish Supreme Court delivered its decision in the case of Ascom. Originating in an arbitral dispute under the Energy Charter Treaty, the case had become an opportunity for the court to contribute to the clarity of rules of the public international law on state immunity for the property of central banks and sovereign wealth funds. The dispute was between Kazakhstan and some foreign investors, resulting in an arbitral award in favor of the latter. Following failed attempts by the state to have the award set aside, the investors successfully requested the Swedish Enforcement Authority that the award be enforced. The district court upheld the decision. The Court of Appeal reversed it. Leave to appeal was granted by the Supreme Court, limited to the question of whether state immunity protected the attached property from enforcement. The property attached by the Enforcement Authority (financial instruments on a securities depository at a bank, receivables linked thereto, and funds on a cash account) was accumulated in and managed by the Kazakhstan central bank—the National Bank of Kazakhstan—as part of a sovereign wealth fund, the National Fund. The immunity protection for property belonging to a state’s central bank is consideredto be especially strong. There are, however, disagreements about the more precise content of this principle. The Supreme Court was thus called upon to determine this.
Execution of Arbitral Awards Against Sovereign Wealth Fund Assets: Enforcement Against States and the Supreme Court’s Decision in Ascom
A party alighting victorious from arbitration realises soon enough that if payment is not forthcoming, the award will only be as effective as its opportunities for being enforced. If the award is against a sovereign State – as it commonly will be in investment treaty arbitration – this complicates things. Enforcing in the respondent State’s jurisdiction may present difficulties. However, the competence of foreign courts and authorities to enforce the award is subject to the respondent’s sovereign immunity. An award creditor seeking to enforce its claim against a sovereign State must, therefore, not only ensure the recognition of its title to execution in a jurisdiction that is the location of suitable assets but must also ensure that these assets are not protected by State immunity. In November 2021, the Swedish Supreme Court (the ‘Swedish Supreme Court’ or ‘Court’) issued an important clarification of the law on sovereign immunity from execution in Ascom and Others v. Republic of Kazakhstan and National Bank of Kazakhstan (the ‘Ascom’ case). Adhering to the restrictive theory of sovereign immunity in respect of enforcement measures, the Court acknowledged the legitimate interest of an award debtor to have the award satisfied and denied immunity from execution of assets held for purposes of general State saving and investment. The decision confirms that Sweden is a favourable jurisdiction for the enforcement of arbitral awards against States.
Investment Protection under the Energy Charter Treaty in the Early Stages of an Underwater Gas Pipeline Project
The Energy Charter Treaty (the ECT) is a multilateral treaty for international long-term cooperation within the energy sector. The treaty was signed in 1994 and entered into force in 1998. Pursuant to the ECT, the Contracting Parties have undertaken to promote and protect investments in the energy sector by investors from other Contracting Parties and to facilitate the transit of energy through their respective ‘Areas’. The ECT stands out in comparison to other investment treaties, not only because of its focus on the energy sector but also because of its large number of Contracting Parties. There are currently fifty-three signatories and Contracting Parties to the ECT, including both states and organisations such as the EU and EURATOM. The laying down of an underwater gas pipeline will generally require significant resources, even at the very early stages of the project. Before the first section of the gas pipeline is placed on the seabed, the investor will often have spent significant funds preparing and obtaining necessary approvals for the project. Early-stage investments may include hiring consultants and contractors to analyse the environmental effects of the project, dealing with permit processes, and preparing, designing and planning for the manufacture, delivery and assembly of the pipeline.
Post M&A Disputes: Recent Nordic Case Law, Especially Regarding Loss Calculation
Arbitration is the main dispute resolution method used in Sale and Purchase Agreements (SPAs) between a buyer and seller concerning company shares or the asset itself. In recent years, especially in Denmark and Norway, several arbitral awards rendered have great importance outside the awards commented on. Post mergers and acquisitions (M&A) disputes can typically be divided into two main categories. The first category, earn-out disputes, concerns the seller’s entitlement to additional compensation in the future depending on the target company achieving certain results and will not be dealt with here. The article will instead focus on the second category, damage claims in case of breach of warranties. Loss calculation in awards occasionally seems to be handled less thoroughly than other parts of the case. Tribunals typically focus most of their attention on the liability question, at least on the basis of a review of awards and their reasoning. As post M&A disputes are mainly handled by arbitration, there is a shortage of publicly available case law, at least in Nordic countries, including case law regarding the way in which loss calculation after the breach of warranties in SPAs is carried out. This chapter presents three post M&A awards, focussing on the issue of loss calculation. The tribunals’ thorough and solid analyses in these cases, especially regarding loss calculation, should be of interest to a wider audience. Several of these awards also focus quite intensively on the calculation aspects.
The CJEU’s Case Law on Intra-EU Investment Arbitration and the Importance of the Place of Arbitration
ACHMEA AND ITS IMMEDIATE CONSEQUENCES The landmark ruling of the Court of Justice of the European Union (CJEU) in Slovak Republic v. Achmea has been at the core of the debate on the relationships between European Union (EU) law and investor-State arbitration for almost five years. The ruling was followed by several other decisions of the CJEU—examined in the following paragraphs—which confirmed its content and expanded its scope. Departing from Advocate General Wathelet’s Opinion, the March 6, 2018 judgment held that the investor-State dispute settlement provision contained in Article 8 of the Bilateral Investment Treaty (BIT) between the Netherlands and the Slovak Republic is incompatible with fundamental principles of EU law, such as those enshrined in Articles 267 and 344 of the Treaty on the Functioning of the European Union (TFEU). Article 267 TFEU empowers—or, in the case of last instance courts, requires—the courts of EU Member States to refer matters pertaining to the interpretation of the EU Treaties or to the validity and interpretation of acts of the EU institutions to the CJEU for a preliminary ruling. Article 344 TFEU prevents Member States from submitting disputes concerning the interpretation or application of the EU Treaties to any other settlement method.
The Exception in Theory, a Unicorn inPractice? Revisiting Security for Costs froma Practitioner’s Perspective
ARBITRAL TRIBUNALS HAVE THE POWER: NOW WHAT? In international arbitration, security for costs (cautio iudicatum sovlvi) has long played a fairly limited role. With third-party funding gaining traction in recent years, the international arbitration community has revisited the instrument. Both in theory and in practice, however, these discussions focused primarily on the implications of the non-applicant being funded by a third party. We take this development as a reason to revisit security for costs more generally. What can be regarded as settled nowadays is that arbitral tribunals have the power to order security for costs. Some national arbitration laws or institutiona rules explicitly vest the arbitral tribunal with this power. Absent such a provision (or an express agreement between the Parties), the power to order security for costs stems from the arbitral tribunal’s broad powers under the applicable national arbitration laws and/or the applicable institutional rules to issue provisional and conservatory measures.
The Impact of EU Law on Dispute Resolution in International Investment and Trade Agreements
The resolution of international investment disputes between investors and States through arbitration has been an established feature of public international law (PIL) for many decades. As is well known, Bilateral Investment Treaties (BITs) between States provide, in essence, that investors in one State party are granted certain rights, such as fair and equitable treatment and protection against unlawful expropriation, in the other State party.1 BITs generally provide a mechanism for investor to state dispute settlement (ISDS) which is by means of an arbitration tribuna. However, this method of dispute resolution has come into conflict with another legal system, namely the European Union (EU) legal system. In this chapter the general relationship between the EU and PIL is analysed first before looking at the case law of the Court of Justice of the European Union (CJEU) on BITs between EU Member States (‘intra-EU BITs’) and on the Energy Charter Treaty (ECT) and subsequent developments arising from that case law.
Global Trends in Arbitration 2022:Conference Report
The third joint biennial Conference organized by the Stockholm Centre for Commercial Law (SCCL) and Oxford Institute of European and Comparative Law (IECL) took place on 2–3 June 2022 in Stockholm. This edition of the Conference was set to highlight the latest developments and trends in international commercial arbitration in light of the experiences gained during the pandemic as well as looking at the future of investment treaty arbitration in Europe. The Conference kicked off with the welcome addresses by André Andersson, Senior Adviser at Mannheimer Swartling and Chair of the SCCL; Ciara Kennefick, Associate Professor of Law at the University of Oxford and Research Fellow at the IECL; and Axel Calissendorff, independent arbitrator, Chair of the Organising Committee, immediate past Head of the Arbitration Research Panel at the SCCL.
Swedish Arbitration-Related Case Law 2021–2022
This chapter will account for court cases relevant to arbitration law from the Swedish Supreme Court and Swedish appellate courts for the period 1 May 2021–30 April 2022. It does not purport to be exhaustive; the aim is to highlight cases that can be assumed to be of interest to a non-Swedish reader.
Virtual Arbitration Hearings under Swedish Law
Videoconferencing is increasingly used to conduct entire remote hearings, i.e., virtual hearings. This raises the question if it is possible under Swedish law to hold a virtual hearing against the objection of one of the parties. The fundamental principle relevant to the question of virtual hearings is the universally recognized principle of due process and equality in the treatment of the parties, established in section 24 of the Swedish Arbitration Act. Section 24 of the Swedish Arbitration Act is an expression of due process as expressed in Article 6 of the European Convention on Human Rights. The European Court of Human Rights considers videoconferencing in general to be compatible with due process. Virtual hearings are also accepted as meeting the standards of due process according to the Swedish Code of Judicial Procedure. It can also be noted that there is nothing under the Arbitration Institute of the Stockholm Chamber of Commerce Arbitration Rules from 2017 or the IBA Rules on the Taking of Evidence that prohibits a hearing by virtual means. Moreover, many arbitration institutes explicitly accept virtual hearings. It would therefore appear reasonable to assume that section 24 of the Swedish Arbitration Act permits virtual hearings, also against the objection of one of the parties. Whether a virtual hearing can be held against the objection of a party is yet to be tried under Swedish law. Consequently, time will tell if virtual hearings are compatible with the Swedish Arbitration Act.
The Alleged Failure of Arbitration toAddress Due Process Concerns: IsArbitration under Attack?
Arbitration is a mechanism for settling disputes that has gained considerable success, first in international commercial disputes and later in investor-state disputes. More recently, both types of arbitration, but especially investment arbitration, have been exposed to harsh criticism. Both types of arbitration are facing an erosion of their credibility, mainly based on doubts about the lack of efficiency in the proceedings, the impartiality and independence of the arbitrators and suspicions about the ability to accurately apply the law. To a large extent, these doubts are based on perceptions or misperceptions, rather than on factual circumstances. With reference to the main issues for which arbitration is being criticized, this chapter explores whether there is reason to fear that the institution of arbitration is not compatible with the principle of due process.
Witness Examination in InternationalArbitration – Best Practices RegardingCross-Examination and Related Issues
A main feature of international arbitration is the arbitral tribunal’s discretion to decide on most procedural issues that may arise during the proceedings. When deciding on such procedural issues, the arbitral tribunal usually turns to what constitutes best practice. However, what constitutes best practice is not always entirely clear, and it is therefore of interest to examine it so as to provide some degree of clarity. In this chapter, best practice is examined and evaluated in relation to what is often the main event of an oral hearing – witness examination. The following issues are discussed: (i) whether an arbitral tribunal should allow and/or mandate written witness statements, (ii) the evidentiary weight of written witness statements when the witness does not attend the oral hearing, (iii) how direct examination ought to be conducted when written witness statements have been used, (iv) admissibility of questions during cross-examination, (v) whether to allow new evidence during cross-examination to prove a witness is lying, (vi) how digital hearings affect cross-examination, and (vii) issues of witness sequestration, including how digital hearings affect the possibility for sequestration.
Expert Determination – Interaction with the Arbitral Tribunal and the Conflict of Competences Between Both: An International Perspective
The majority of disputes arising out of the post-closing phase relate to determination or adjustment of the purchase price, which is done through an expert determination (ED) procedure. ED is recognized by various jurisdictions and is a well-known and frequently exploited legal feature in the commercial reality. The gist of the ED procedure consists of allowing a third party, usually an independent accountancy firm, to determine the level of the price adjustment or the final price itself. If any dispute between the parties pertaining to the outcome of the ED should arise, the same expert is involved in resolving such dispute by providing their own determination. Such determination is designed to be fact specific, based on financial documents only, fast and efficient. The parties agree that once the expert’s procedure is completed, the ED’s decision shall be final and binding. At the same time, it is not uncommon for the same M&A contract to include an arbitration agreement which stipulates that ‘any dispute’ arising out of said contract shall be solved by an arbitral tribunal. This duality often leads to these two proceedings overlapping which creates conflicts of competences between the arbitral tribunal and ED. This chapter aims to focus on analysing what the interrelation between ED and arbitration is, what the possible conflicts of competences between both institutions are, and how such conflicts are and should be tackled from the international arbitration practice perspective.
Protecting Confidentiality Within Arbitral Proceedings
Disputes being resolved in international commercial arbitration often involve confidential information such as trade secrets, know-how, price calculations, sources of supply or intellectual property rights. Situations where a party would need to present material containing confidential information that requires increased protection may arise in various situations during an arbitration. The desire to protect confidentiality is on the other hand in conflict with general principles of due process, including the equal treatment of the parties and the right to be heard. The chapter presents established measures with the function of protecting confidential information within arbitral proceedings, and which have been employed by practitioners in practice and reported in preceding legal literature. Further, the chapter provides an analysis of how these measures conform to the general due process requirements of international arbitration, especially under the Swedish Arbitration Act. In addition to presenting measures which the parties may agree to and the arbitral tribunal may assist in implementing, e.g., by issuing confidentiality orders, the chapter argues that arbitrators have the authority to restrict access to sensitive material presented in the arbitration upon the application of one the parties. While no precedent confirming such authority under Swedish law yet exists, it is the view of the authors that a tribunal may restrict access within the limits set by Article 24 of the Swedish Arbitration Act when a legitimate need to protect confidential information exists and the procedural rights of the other party are upheld as far as possible.
Two Parties – Several Contracts: AFour-Step Method for Assessing ArbitralTribunals’ Jurisdiction Post Belgor
A contractual relationship between two commercial parties often consists of multiple contracts that are more or less connected to each other. In such a multi-contract context, it may happen that only one contract (typically the main contract) contains an arbitration clause while the other contracts (successive or ancillary) either lack arbitration clauses or contain other or somewhat different dispute resolution mechanisms. If a dispute arises regarding any of the other contracts, the arbitral tribunal will often have to determine whether such dispute is covered by the arbitration clause in the main contract. In this chapter, a proposed four-step method for determining arbitral tribunals’ jurisdiction in multi-contract contexts under Swedish law is presented. By presenting this method, the ambition is to answer the question of under what circumstances an arbitration clause in one contract may cover disputes regarding another contract between the same parties. The proposed method addresses the implications from the most recent Swedish precedent on assessing arbitral tribunals’ jurisdiction under Swedish law – Belgorkhimprom v. Koca (NJA 2019 p. 171, Belgor).
What Is the Governing Law of theArbitration Agreement? A ComparisonBetween the English and SwedishApproaches
Parties rarely make a specific choice of the governing law of the arbitration agreement. Which law is applicable can, however, have a considerable influence over the outcome of the arbitration. This issue was considered in detail by the UK Supreme Court in Enka v. Chubb [2020] UKSC 38, and it was also the subject of a fairly recent case in the Svea Court of Appeal (Judgment of the Svea Court of Appeal, 19 December 2019, Case T 7929-17). This chapter compares and contrasts the English and Swedish approaches, which differ markedly from each other. The authors find fault with both approaches and suggest ways in which both could be improved. Meanwhile, it is suggested that parties would avoid potential issues by making clear that their choice of governing law in the main contract also relates to the arbitration agreement itself.
The Impact of Unilateral Sanctions onInstitutional Arbitration
Unilateral restrictive measures (URM) are economic measures that are imposed by one sovereign state or a group of sovereign states against another state and/or its national(s), to achieve a specific foreign policy or national security objective. Commonly, URM have the express purpose of changing the policy of a foreign state by making it difficult for a specially designated national of that state (SDN) to trade with the nationals of the state which imposed URM. An avalanche of national URM programs introduced by some states against the nationals of other states as well as counter-URM laws negatively affect global trade, and consequently, international commercial arbitration. Accordingly, to pursue its case in an international arbitration, an SDN must master an ultimate obstacle course of legal restrictions and commercial limitations, which quite often become an insurmountable impediment to “having one’s day in court.” Difficulties may arise at each stage when an SDN: (a) instructs the service providers (legal counsel, expert witness, support services); (b) initiates arbitration proceedings and pays arbitration fees; (c) constitutes an arbitral tribunal; (d) deals with the effect of URM on an underlying commercial contract; (e) deals with the setting aside of an arbitral award; (f) pursues the recognition and enforcement of the arbitral award. Although this list is not exhaustive, the above are probably quite common for most SDNs, irrespective of which national URM program they are designated by.
Arbitral Jurisdiction in Respect of ClaimsBased on Fraud and Other Non-contractualGrounds
In commercial arbitration, it is relatively common that some claims or part of claims are based on tortious or criminal liability. This chapter examines the issue of whether an arbitral tribunal in commercial arbitration is authorized to try claims based on tort, fraud, bribery and other non-contractual grounds, assuming that the arbitration agreement is worded in accordance with the commonly used model arbitration clauses. The focus is on the position taken under Swedish and other Nordic laws. The legal development both in Sweden and in other Nordic jurisdictions referred to in the chapter shows an increased focus on the interpretation of the arbitration clause and the reasonable expectations of the parties to the agreement, rather than on limiting the scope of the matters to be resolved by arbitration due to a narrow interpretation of the concept of ‘legal relationship’ found in the New York Convention and in national legislation. Thus, it appears from case law that claims based on non-contractual liability are generally accepted in arbitrations seated in the Nordics, provided that the arbitration clause, interpreted according to general contract interpretation principles, is deemed to cover the disputed facts in question.
United States Case Law Developmentsunder 28 U.S.C. §1782 with Regard toInternational Arbitration Proceedings
One of the most significant and well-known differences between litigation and arbitration proceedings in the United States (U.S.) and the same proceedings in many civil law traditions is discovery. With regard to its scope and methods, it is very unique. It may, however, be used by foreign litigants, outside the U.S. as well. When an arbitration proceeding abroad involves a connection to the U.S., an application for seeking evidence in the U.S. under 28 U.S.C. §1782 can be made to benefit from U.S. style discovery. 28 U.S.C. §1782 permits any party or other “interested person” involved in proceedings before a “foreign or international tribunal” to make a request to a U.S. federal district court for an order compelling discovery from a person or entity that resides or is found in the district in which the U.S. court sits. There have been two recent notable lower court developments redefining the scope of 28 U.S.C. §1782. First, the applicability of 28 U.S.C. §1782 was clarified with regard to evidence located outside the U.S., i.e., extraterritorial discovery. Then, several U.S. Courts of Appeals have rendered decisions regarding the applicability of 28 U.S.C. §1782 in private international arbitration proceedings, i.e., arbitration proceedings conducted outside of arbitration institutions, resulting in a veritable circuit split. The chapter explains the different approaches taken with regard to an interpretation of 28 U.S.C. §1782, including the filing of a writ of certiorari with the U.S. Supreme Court.
Calling Uncooperative Witnesses With or Without the Arbitral Tribunal’s Assistance
Matthias Scherer touches on a problem frequently encountered in international arbitration, that of recalcitrant or otherwise unavailable witnesses and their forced production. His chapter illustrates practical and legal issues and how an arbitral tribunal might determine them. The chapter reports orders issued in international arbitration proceedings as well as a recent decision of the Swiss Federal Supreme Court (4A_36/2020) reviewing an arbitral award rendered in Switzerland under the SCC Rules. Production of witnesses is ordered only exceptionally, in particular if it involves request to state courts to compel a witness. A 2020 decision of the Swiss Federal Supreme Court (the ‘Federal Tribunal’) brought to light a matter that could not be more suited for a Swiss author’s publication in the Stockholm Arbitration Yearbook: An arbitration with its seat in Switzerland, but governed by the Stockholm Chamber of Commerce (SCC) Rules. The case touched on a problem frequently encountered in international arbitration, that of recalcitrant or otherwise unavailable witnesses. This chapter illustrates, through the ‘Swiss SCC’ case and a few other examples, how an arbitral tribunal might determine such issues. The plaintiff in Federal Tribunal case no. 4A_36/2020, a German pasta manufacturer, had been the unsuccessful respondent in the underlying arbitration initiated by its former United States (US) distributor. The arbitral tribunal had granted damages to the distributor (claimant in the arbitration) among others based on a sales contract between the distributor and a US customer which the distributor was unable to perform as a result of the German company’s termination of the exclusive importation and sales agreement.
Comments on the Use of DissentingOpinions
The author describes the different types of dissenting opinions and the different approaches towards the issuing of dissenting opinions in different jurisdictions, with a particular emphasis on Sweden, Italy, Austria and Germany. Subsequently, the author analyses the differences between deliberations of state court judges and deliberations by arbitral tribunals. On this basis, characteristic features of arbitrators’ deliberations are identified. Lastly, the author sets out parameters that may serve as guidelines for expressions of arbitrator’s dissent.
How Do Tribunals Deliberate? A Guide toEffective Arbitral Decision-Making inInternational Arbitration
In any arbitration involving three arbitrators, deliberations between tribunal members are crucial to the outcome of a case. Yet deliberations do not always proceed smoothly. In cross-border disputes, differences in the arbitrators’ cultural background, legal training, personalities and language skills will make it difficult for an ad hoc group of people who are not familiar with each other to work together efficiently. Some party-appointed arbitrators, while ostensibly independent and impartial, still exhibit inappropriate allegiance to the positions advocated by the party that appointed them.Even harmonious deliberations can pose challenges. Disputes submitted to international arbitration are often complex cases where clear answers are few and far between. Conscientious arbitrators may have legitimately different views on the correct outcome of the case. Not infrequently, those views are coloured by various psychological biases that are difficult to rein in. The chapter discusses how arbitrators should approach their delicate duty to deliberate with a view to finding potential guidelines for effective arbitral decisionmaking. It focuses on issues such as rapport building, assigning duties among arbitrators, the role of administrative secretaries and tribunal-appointed experts, as well as on how to deal with bargaining, biases, dissents and ‘difficult’ tribunal members during deliberations. While realizing that each arbitration is unique, and what works well with one tribunal may not work well with another, the author suggests that there are some basic propositions which may help arbitrators to deal with the complexities of deliberations, especially in a multicultural setting.
The exponential growth of climate change-related investments will prompt an increase in the relating disputes. Arbitration has the potential to become a favoured resolution mechanism for this type of disputes. The investment arbitration framework is particularly adapted for the expectation both of investors and of host States. International investment agreements include substantive protections that could provide a basis for investors to advance claims against States based on environmental and climate change-related losses. Likewise, the same framework could also provide for a defence, and potentially for grounds for a counterclaim, to respondent States which have adopted environmental regulations in compliance with climate change undertakings. Investors may find it difficult to argue that they had been unaware of the States’ international obligations to take measures against climate change. Remarkably, out of the eleven investment arbitration cases where respondent States have raised counterclaims, the only two that were successful were based on environmental arguments. This chapter makes the case for the suitability of the arbitral procedure for climate change disputes, with parties being able to choose experts in the field as arbitrators or possibly challenge arbitrators for their lack of specialist expertise. Transparency of the proceedings and public participation should be further encouraged by arbitral institutions in order for arbitration to gain legitimacy in resolving climate change disputes.
Swedish Arbitration-Related Case Law2020-2021
This chapter accounts for court cases relevant to arbitration law from Swedish courts for the period 1 May 2020-30 April 2021. The aim is to highlight cases that can be assumed to be of interest to a non-Swedish reader.