International arbitration law and rules in Sweden

Arbitration proceedings in Sweden have continued more or less uninterrupted during the ongoing Covid-19 pandemic, with hearings and case material shifting to digital media. During the autumn of 2019, the Arbitration Institute of the Stockholm Chamber of Commerce (the SCC) launched its innovative SCC Platform for case handling. The Platform is mandatory for any communication that involves the SCC and is used for communication and file sharing between the parties and their counsel, the SCC and the tribunal. Post arbitration, the Platform provides an archive service. The platform can also be used for ad-hoc proceedings and has been praised for making arbitration proceedings more efficient and transparent. Considering the SCC’s dominant position for non-ad hoc Swedish seated arbitrations, this technological step has proven to be a marked impact for arbitration work in Sweden. This, combined with the recent amendments to the Swedish Arbitration Act to modernise and improve an already established piece of legislation, is proof of Sweden’s ambition as one of the top jurisdictions for international arbitration. 

With thanks to Setterwalls for their contribution to the Guide.

1.1.1 The Swedish Arbitration Act (Swedish Arbitration Act) 1 The Swedish Arbitration Act of 1999, SFS 1999:116.  came into force on 1 April 1999. Although Sweden did not formally adopt the UNCITRAL Model Law (1985) (Model Law (1985) 2 For the full text of Model Law (1985) see: http://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/06-54671_Ebook.pdf. ), it was an important source of inspiration when drafting the Swedish Arbitration Act. As a result, the Swedish Arbitration Act, to a great extent, contains identical or similar provisions to the Model Law (1985). Therefore, the Swedish Arbitration Act should not present any major surprises, although there are some features, which differ from the Model Law (1985). The Swedish Arbitration Act was recently modernised with the explicit purpose of making Swedish arbitration more accessible for foreign users and attracting international arbitration matters to Sweden. The amendments became effective from 1 March 2019 3 SFS 2018:1954. . 

1.2.1 Arbitration in Sweden has a long tradition which goes back to the 14th century when it was established that disputes could be submitted to so-called “entrusted persons”. In the 1734 Statute Book, the Swedish Enforcement Code contained a provision on arbitration to the effect that if parties had referred a dispute to entrusted persons, and agreed to abide by their decision, such a decision was enforceable.

1.2.2 The first comprehensive arbitration act was adopted in 1887. Subsequently, a new arbitration act came into force in 1929. As a result of Sweden’s accession to the 1923 Geneva Protocol and the 1927 Geneva Convention, the Swedish legislature also enacted the Foreign Arbitration Agreements and Awards Act 4 The Act Concerning Foreign Arbitration Agreements and Awards of 1929, SFS 1929:147. . 

1.2.3 It was not until the 1990s that the arbitration legislation was thoroughly revised. This revision resulted in the current Swedish Arbitration Act. One reason for the revision was the fact that, since the 1970s, Sweden had become a significant venue for cross border arbitration, primarily with parties from the USA on one side, and parties from the Soviet Union on the other. Sweden has since managed to maintain this “East-West” position. Today Sweden remains a popular choice as the seat of arbitration with many parties from Russia, Ukraine and the People’s Republic of China when negotiating the terms of an arbitration agreement with counterparties from the USA, Canada and western Europe.

1.2.4 A large number of Swedish arbitrations, domestic as well as international, are referred to and administered by The Arbitration Institute of the Stockholm Chamber of Commerce (SCC). The SCC was founded in 1917 and has developed into one of the leading arbitration institutions in the world, with a caseload of about 150-200 cases per year. In 2017, the SCC adopted new Arbitration Rules (SCC Rules) and new Rules for Expedited Arbitrations. In 2021, the SCC also introduced a new dispute resolution tool, SCC Express, through which the parties of a dispute, for a fixed fee, can obtain a neutral, legal assessment of the dispute in three weeks.

2.1.1 Sweden is a civil law jurisdiction and, as such, the primary sources of law are statutes. If the legislation does not provide a sufficient answer, preparatory works (travaux préparatoires), case law and scholarly writings are taken into account as secondary sources of law.

2.1.2 The preparatory works relevant to interpretation of the Swedish Arbitration Act are the Committee Report, “Statens offentliga utredningar” 5 SOU 1994:81 and 2015:37 , and the Government Bill. 6 Proposition 1998/99:35 and 2017/18:257  However, it should be noted that the importance of these preparatory works has gradually diminished in recent years.

2.1.3 In Sweden, the decisions of higher courts are not formally binding on lower courts. However, in practice, the judgments and decisions of the Swedish Supreme Court are followed. The most important decisions from the Supreme Court appear in a publication called “Nytt Juridiskt Arkiv”.

2.1.4 The revisions of the Model Law (1985) and the UNCITRAL Arbitration Rules (1976) 7 For the full text of the UNCITRAL Arbitration Rules (1976) see http://www.uncitral.org/pdf/english/texts/arbitration/arb-rules/arb-rules.pdf. , and the development of the different sets of IBA Guidelines concerning arbitration, as well as the rules and policies of the SCC and other major arbitral institutions, have all influenced the development of Swedish arbitration law. Such soft law sources have also been explicitly considered in case law when interpreting the Swedish Arbitration Act. 8 Jilkén v Ericsson NJA 2007, p 841.  

2.2.1 The Swedish Arbitration Act applies to arbitral proceedings commenced after 1 April 1999. This includes arbitral proceedings commenced after 1 April 1999 where the parties entered into an arbitration agreement prior to this date. Further, the current version of the Swedish Arbitration Act, as amended during 2019, shall be applied for arbitrations initiated after 1 March 2019.

2.2.2 The Swedish Arbitration Act applies equally to domestic and international arbitration, provided that the seat of arbitration is Sweden. 9 Swedish Arbitration Act, s 46.  Moreover, certain provisions of the Swedish Arbitration Act apply even if the seat of arbitration is outside Sweden – for example, the provisions regarding the recognition and enforcement of foreign awards in Sweden. 10 Ibid, s 52–60.

3.1.1 Under Swedish law an arbitration agreement is generally not considered any different from other agreements in respect of its validity. Thus, the arbitration agreement must not be tainted by duress, fraud, mistake or any other circumstances which may make it void under the ordinary rules of contract law.

3.1.2 No particular form is required for the arbitration agreement. This means that oral arbitration agreements are also legally binding and accepted. However, practically all arbitration agreements are in written form, either as a dispute resolution clause in a commercial contract or, more rarely, entered into separately by the parties once a dispute has arisen.

3.1.3 The parties must have the legal capacity to conclude an arbitration agreement – ie if a party is a corporation, it must be properly constituted and validly represented.

3.1.4 There must not be any circumstances leading to the enforcement of the arbitration agreement being considered invalid or “unreasonable”. 11 Swedish Contracts Act, s 30 – 36.  In exceptional cases, the arbitral tribunal or a court may set aside or amend an arbitration agreement if it is deemed unfair. This might be the case if, for example, one party is in a disproportionately strong negotiating position relative to a much weaker counterparty, such as a consumer.

3.2.1 The subject matter of the dispute must be “arbitrable”, ie it must be a subject matter that can be settled under the laws of Sweden. 12 Swedish Arbitration Act, s 1(1).  Arbitrability is governed by Swedish law, even when foreign law is applied to the arbitration agreement or to the merits of the case. 13 Ibid, s 49(2).  Certain disputes, for example, the registration and validity of patents and trademarks, questions of punishment and forfeiture, as well as family and criminal law matters, are non-arbitrable under Swedish law.

3.3.1 The jurisdiction of an arbitral tribunal depends on the existence of a valid arbitration agreement. If the parties have included the arbitration agreement in the commercial contract, the question may arise as to what influence any alleged invalidity of the commercial contract will have on the arbitration agreement and the arbitral tribunal’s powers. The doctrine of separability, whereby the arbitration agreement constitutes a separate agreement to the commercial contracts, applies in Sweden. 14 Ibid, s 3. Thus, even though the main agreement may be invalid, this does not automatically affect the validity of the arbitration clause. In practice this means that the arbitration clause is considered a separate agreement from the main contract. This safeguards the efficiency of the arbitral proceedings and allows the issue of the validity of a contract containing an arbitration clause to be submitted to arbitration.

4.1.1 The statutory framework for appointing arbitrators is, to a large extent, non-mandatory. It can, therefore, be modified or replaced by the parties by, inter alia, express appointment provisions in the arbitration agreement – for example, by referring to the rules of any arbitral institution (eg the SCC Rules 15 For the full text of the SCC Arbitration Rules, see http://sccinstitute.com/media/169838/arbitration_rules_eng_17_web.pdf. ) or by designating an appointing authority.

4.1.2 The parties are free to appoint one or more arbitrators, and to determine the manner in which they are appointed. 16 Swedish Arbitration Act, s 1(1) and 12(1).  However, sole arbitrators are normally only appointed in minor and less complicated matters. The SCC has developed a specific set of rules for expedited arbitrations, the Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce (SCC Expedited Rules). 17 For the full text of the SCC Expedited Rules, see http://sccinstitute.com/media/178161/expedited_arbitration_rules_17_eng__web.pdf. Pursuant to the SCC Expedited Rules, the arbitral tribunal always consists of a sole arbitrator appointed either by the parties jointly or by the SCC. 18 SCC Expedited Rules, art 17 and 18.  

4.1.3 Unless the parties have agreed otherwise, the arbitral tribunal consists of three arbitrators, of which each party shall appoint one and the party-appointed arbitrators shall appoint the third to be the chair of the arbitral tribunal. 19 Swedish Arbitration Act, s 13.  

4.1.4 The first party shall notify the opposing party of its choice of arbitrator in its request for arbitration. 20 Ibid, s 19.  The receipt of such notice triggers an obligation for the opposing party to notify the first party of its choice of arbitrator in writing within 30 days. 21 Ibid, s 14(1).  If the opposing party fails to appoint an arbitrator within this timeframe, the district court shall appoint an arbitrator at the request of the first party. Another alternative for the first party is to abandon arbitration and bring the dispute before a state court. 22 Ibid, s 5(2).  A valid arbitration agreement is normally a bar to the jurisdiction of the courts, but this does not apply when the other party has failed to properly appoint an arbitrator.

4.1.5 Should the party-appointed arbitrators fail to appoint the third arbitrator as chair of the arbitral tribunal, within 30 days from the date on which the last arbitrator was appointed, any party may apply to the district court to make such an appointment. 23 Ibid, s 15(1).  

4.2.1 Under Swedish law, any person of age and capacity concerning their actions and property may act as an arbitrator. 24 Ibid, s 7.  An arbitrator must therefore be of age and cannot be placed in bankruptcy.

4.2.2 Under the Swedish Arbitration Act, as well as under the SCC Rules, an arbitrator must be impartial and independent. 25 Ibid, s 8(1) and SCC Rules, art 18(1).  

4.2.3 An arbitrator can be discharged at the request of one of the parties if there are circumstances which may diminish confidence in the arbitrator’s impartiality and independence. Under the Swedish Arbitration Act, these circumstances include:

• where the arbitrator, or a person closely associated to the arbitrator, is a party to the dispute;
• where the arbitrator, or a person closely associated to the arbitrator, may expect to benefit or suffer detriment worth attention as a result of the outcome of the dispute;
• where the arbitrator, or a person closely associated to the arbitrator, is the director of a company or any other association which is a party to the arbitration, or otherwise represents a party or any other person who may expect to benefit or suffer detriment worth attention as a result of the outcome of the dispute;
• where the arbitrator has taken a position in the dispute, as an expert or otherwise, or has assisted a party in the preparation or conduct of its case in the dispute; or
• where the arbitrator has received or demanded compensation in violation of section 39(2) of the Swedish Arbitration Act. 26 Swedish Arbitration Act, s 8(2).

4.2.4 There are also other situations when an arbitrator might be disqualified, as established under Swedish case law. 27 See Jilkén v Ericsson NJA 2007, p 841, where the Swedish Supreme Court (Supreme Court) addressed several questions concerning the impartiality of arbitrators, ultimately finding that there were justifiable doubts as to the arbitrator’s impartiality since he was a part-time consultant with a law firm which had Ericsson as one of its major clients. See also Korsnäs Aktiebolag v AB Fortum Värme samägt med Stockholms stad NJA 2010, p 317, where the Supreme Court held that an arbitrator appointed by the same law firm on repeated occasions did not cause sufficient doubts as to the arbitrator’s impartiality to be raised because, inter alia, the majority of his appointments came from other law firms.  

4.2.5 Both the Swedish Arbitration Act and the SCC Rules impose on arbitrators an express disclosure obligation to the parties in respect of any circumstances which, pursuant to sections 7 or 8 of the Swedish Arbitration Act, may prevent them from serving as an arbitrator. This obligation starts when the arbitrator is approached with the potential appointment and lasts throughout the whole of the arbitral proceedings. 28 Swedish Arbitration Act, s 9 and SCC Rules, art 18.  In borderline cases, the failure to disclose relevant circumstances may be a factor to take into account when assessing whether an arbitrator is impartial or not.

4.3.1 A challenge to an arbitrator must be made to the arbitral tribunal (or to the SCC in SCC proceedings) within 15 days of the date on which the party became aware both of the appointment of the arbitrator and of the existence of the circumstances forming the grounds for the challenge. 29 Ibid, s 10(1) and SCC Rules, art 19(3).  

4.3.2 A challenge in an ad hoc arbitration is adjudicated by the arbitral tribunal itself, unless the parties have decided that it shall be determined by another party, for instance an arbitral institution such as the SCC. 30 Swedish Arbitration Act, s 10(1) and s 11.  

4.3.3 If a challenge is sustained, the decision is not subject to appeal. However, a party that is dissatisfied with a decision not leading to the removal of an arbitrator may file an application with the district court that the arbitrator should be removed from his or her post. Such an application must be submitted within 30 days of the date on which the party receives the decision. 31 Ibid, s 10(3). The arbitral tribunal may continue with the arbitral proceedings pending the determination of the district court.

4.3.4 In an SCC arbitration, any challenge to an arbitrator is decided by the SCC Board. 32 SCC Rules, art 20.  Decisions of the SCC Board are final and not subject to appeal. The SCC normally does not publish the reasons for its decisions regarding challenges but does publish articles containing statistics and the outcome in anonymous challenge cases on a regular basis.

Replacement of arbitrators

4.3.5 If an arbitrator resigns or is discharged, a new arbitrator will be appointed by the district court at the request of one of the parties, unless they have agreed otherwise. If the resigning arbitrator was appointed by a party, the party’s preference regarding a new arbitrator shall be adhered to by the court, unless there are particular reasons not to do so. 33 Swedish Arbitration Act, s 16.  Where the arbitrator cannot fulfil his or her duties due to circumstances which arise after his or her appointment, the person who was originally required to make the appointment makes the replacement appointment according to the procedure set out in sections 14 and 15 of the Swedish Arbitration Act, ie the same procedure as was applied when appointing the original arbitrator. 34 SCC Rules, art 21(1).

4.3.6 If an arbitrator is removed in an SCC arbitration, the SCC Board appoints the new arbitrator unless the arbitrator being replaced was a party-appointed arbitrator in which case, provided the SCC Board deems it appropriate, the appointing party appoints the new arbitrator. 

4.3.7 Where an arbitrator has been replaced, the newly composed arbitral tribunal shall, after consultation with the parties, decide whether, and to what extent, the arbitral proceedings are to be repeated. In SCC cases it is possible to proceed with a “truncated tribunal” in order to avoid unnecessary loss of time and increased costs. 35 Ibid, art 21(2) and 21(3).  Before the SCC Board makes its decision, the parties and the arbitral tribunal have an opportunity to submit comments to the SCC Board as to whether to proceed with the arbitration.

5.1.1 Swedish arbitration law recognises the well-known principle of competence-competence whereby the arbitral tribunal has the authority to rule on its own jurisdiction. 36 Swedish Arbitration Act, s 2(1).  This rule empowers the arbitral tribunal to declare itself authorised to conduct the arbitral proceedings and to make an award in the dispute, or to rule that it lacks jurisdiction.

5.1.2 If the arbitral tribunal finds that it lacks jurisdiction, it must dismiss the claim through an award. A dissatisfied party may appeal such an award on its merits. 37 Ibid, s 27(1) and 36. However, should the arbitral tribunal determine that it has jurisdiction, this is formally a decision (ie not an award). A decision is generally not binding on either the parties or the arbitral tribunal. Accordingly, the arbitral tribunal may change its decision if new circumstances occur in the course of the arbitral proceedings. 38 Ibid, s 27(1) and 27(3). Nonetheless, a decision on jurisdiction may become binding upon a party if that party is considered to have waived its right not to be bound by continuing to participate in the arbitral proceedings without properly objecting. 39 See Swedish Arbitration Act, s 34(2) and SCC Rules, art 36.  Moreover, a party may also appeal the decision on competence by bringing a court action before the Court of Appeal (ie not the first instance district court) within 30 days from receiving the tribunal’s decision. 40 Swedish Arbitration Act, s 2(2).  

5.1.3 It is also possible for a party to bring a court action for the purpose of obtaining a final and binding ruling as to whether the arbitration agreement is valid and applicable. However, once arbitration has been initiated, such an action is only allowed if the counterparty does not object. Then, an appeal to the Court of Appeal of a decision on competence from the arbitral tribunal as described above in 5.1.2 is the only court action allowed prior to an award being rendered. 41 Ibid, s 4a. Once the award has been rendered, a party may bring a claim to have the award set aside under the procedure set out in section 34 of the Swedish Arbitration Act, based on lack of competence, provided it has preserved its right to do so.

5.2.1 Under Swedish law, an arbitration agreement does not constitute a procedural impediment to a state court granting interim relief, such as freezing orders and other security measures. 42  Swedish Arbitration Act, s 4(3) and Swedish Code of Judicial Procedure (the “Procedural Code”), ch 15, s 5. In addition to the power of a state court to order interim measures, 43  On which see further section 9.1 below. the arbitral tribunal may, at the request of a party, grant interim measures in the course of arbitral proceedings, unless the parties have agreed otherwise. 44  Swedish Arbitration Act, s 25(4). The arbitral tribunal may prescribe that the party requesting the interim measure must provide reasonable security for the damages the opposing party may incur as a result of the interim measure being granted. 45 Ibid.  

5.2.2 A similar provision concerning the power to order interim measures is found in the SCC Rules. 46 SCC Rules, art 37. In addition, the SCC Rules also contain provisions concerning a so-called “emergency arbitrator”. 47 Ibid, appendix II.  This is an arbitrator appointed solely to order interim measures, either before arbitral proceedings have been commenced, or before a case has been referred to the arbitral tribunal deciding the subject matter of the case. The SCC must appoint an emergency arbitrator within 24 hours of the receipt of an application for the appointment, and the emergency arbitrator appointed shall, as a general rule, make his or her decision on interim measures within five days of the date on which the application was referred to the emergency arbitrator. 48  Ibid, appendix II, art 8(1).

5.2.3 Interim measures ordered by an arbitral tribunal cannot be enforced in Sweden. If parties wish to enforce interim measures they will, therefore, have to apply to the courts for interim relief. 

6.1.1 Because of the doctrine of separability, the arbitration clause is, in theory, an independent agreement and may, therefore, be governed by the laws of a jurisdiction different from that governing the main contract. Under Swedish law, an arbitration agreement is not automatically included within the scope of a choice of law clause that may be in the main contract.

6.1.2 Any law chosen by the parties will apply to the arbitration agreement. It is, however, very unusual for the parties to include a different choice of law to apply to the arbitration agreement. Where the parties have not agreed on the law to apply to the arbitration agreement, the arbitration agreement is governed by the law of the country which the parties have chosen as the seat of arbitration. 49 Swedish Arbitration Act, s 48(1). Thus, if the parties have not selected any law to apply to the arbitration agreement but have agreed on Stockholm as the seat of arbitration, then Swedish law will govern the arbitration clause, as well as issues regarding the validity and scope of the arbitration clause. If the parties have failed to agree on which place in Sweden will be the seat of arbitration, this decision will be made by the arbitral tribunal. 50 Ibid, s 22(1).  If the arbitration takes place under the SCC Rules, the SCC Board will determine the seat, unless the parties agree otherwise. 51 SCC Rules, art 25(1).  

6.2.1 Arbitral tribunals are subject to the national arbitration law of the territory in which the arbitral proceedings take place. This national law is the law of the seat of the arbitration (lex arbitri). The Swedish Arbitration Act therefore governs arbitral proceedings which have their seat in Sweden, even if the dispute that is the subject of those arbitral proceedings may have an international connection. 52 Swedish Arbitration Act, s 46.

6.2.2 The Swedish Arbitration Act, however, contains very few mandatory provisions which govern the conduct of the arbitral proceedings. The principle of party autonomy leaves ample room for the parties to agree on the conduct of the arbitral proceedings, or to refer to institutional rules, such as the SCC Rules, to supplement the Swedish Arbitration Act.

6.3.1 Under Swedish arbitration law, and in light of the principle of party autonomy, the parties are free to select the law governing the merits of their dispute. Usually this is done by including a governing law clause in the contract (lex contractus). Further, the Swedish Arbitration Act clarifies that if anything to the contrary does not follow by the parties’ agreement, the parties’ choice of law shall not be considered to include choice of law rules of the chosen law. If the parties’ have not agreed on applicable law, the Arbitral Tribunal decides which law shall be applied. 53 Ibid, s 27 a. In contrast to the Model Law (1985), the Swedish Arbitration Act does not contain any rules explaining, in the absence of a governing law clause, which law the arbitral tribunal must apply when considering the substantive issues in dispute. However, for an arbitral tribunal sitting in Sweden, the Swedish conflict of law rules may serve as a starting point in the search for the applicable substantive law.

6.3.2 Where the parties have not made any choice of law and have chosen the SCC Rules, it is for the arbitral tribunal to determine the applicable law. In order to avoid having to identify and apply a specific conflict of laws system, the arbitral tribunal is permitted to decide which law to apply based on what it considers most appropriate. 54 SCC Rules, art 27(1).  This straightforward approach enhances the flexibility and efficiency of the arbitral proceedings as it avoids the arbitral tribunal having to use a two-step method, ie to first determine the conflict of law system which applies and then find the applicable law. The arbitral tribunal may under the SCC Rules and the Swedish Arbitration Act decide the dispute ex aequo et bono or as amiable compositeur only if expressly authorised to do so by the parties. 55  Ibid, art 27(3) and the Swedish Arbitration Act s 27 a(3).

6.4.1 The important issue of legal capacity – ie whether the parties were appropriately authorised to conclude the agreement (for example, corporations must be properly constituted and validly represented) – is decided by the local law of the entity in question (lex corporationis). This law is typically the law of the country where the entity has been registered, provided that registration is required for the creation and existence of a legal entity. If registration is not required, the law of the place of the legal entity is normally applied. This conflict of law rule under Swedish law is also found in many other jurisdictions. 56 K Hobér, International Commercial Arbitration in Sweden, OUP, 2011, p 78  

7.1.1 A party wishing to initiate arbitral proceedings does so by sending the proposed respondent a written “request for arbitration”, containing the following:

• an express and unconditional request for arbitration;
• a statement of the issue covered by the arbitration agreement which is to be resolved by the arbitrators; and
• if applicable, a statement regarding the party’s choice of arbitrator. 57 Swedish Arbitration Act, s 19.

7.1.2 The request for arbitration need not set forth any claims or state any grounds. However, the description of the matter in dispute must provide the respondent with a sufficient basis to decide on the appointment of its arbitrator. As stated at paragraph 4.1.4 above, the time limit by which the respondent is to appoint an arbitrator commences on the day it receives the request for arbitration.

7.1.3 An SCC arbitration is commenced on the date that the SCC receives a request for arbitration from the proposed claimant. This request must include:

• a summary of the dispute and contact details of the parties and their counsel;
• details of the preliminary relief sought by the claimant;
• a copy or description of the arbitration agreement;
• where claims are made under more than one arbitration agreement, an indication of the arbitration agreement under which each claim is made;
• any comments on the number of arbitrators and the seat of arbitration; and
• if applicable, the contact details of the arbitrator appointed by the claimant. 58 SCC Rules, art 6.

7.1.4 In addition, the claimant shall, upon filing the request for arbitration, pay a registration fee to the SCC. This fee is currently EUR 3,000. 59 Ibid, appendix IV, art 1.  

Proof of notification

7.1.5 As a general rule, service of the request for arbitration and the award must be received personally, ie by actual receipt of the document by a person duly authorised to receive it on behalf of the recipient. The burden of proof in this respect lies with the sender. Proper notification is a key issue when it comes to the enforcement of awards. 60 Swedish Arbitration Act, s 54. See also Lenmorniiproekt OAO v Arne Larsson & Partner Leasing AB NJA 2010 s. 219, where the Supreme Court refused to enforce a Russian award due to unsatisfactory notice.  

7.1.6 In SCC arbitrations, the SCC has the responsibility for serving the request for arbitration on the respondent once it has been filed and accepted by the SCC. The SCC usually delivers the request for arbitration to the respondent either by registered mail if the respondent is domiciled in Sweden, or by courier service with confirmation of receipt if the respondent is domiciled abroad.

7.2.1 The arbitral tribunal is required to handle the dispute that is the subject of the arbitral proceedings in a fair, impartial, practical and speedy manner. 61 Swedish Arbitration Act, s 21 and 24. See also SCC Rules, art art. 23(2).  Additionally, the arbitral tribunal must act in accordance with the agreement made by the parties insofar as there is no impediment from doing so. This ensures that the arbitration is guided by the principles of party autonomy, due process and equal treatment of the parties.

7.2.2 In Sweden it is considered of great importance that the arbitral procedure maintains its flexibility. The arbitral tribunal should always adapt the procedure to the circumstances of the individual case and aim to prevent a more detailed and formalised procedure than is regarded necessary in order to conduct a fair process.

7.2.3 Moreover, the role of the Swedish state courts is restricted to supporting the arbitral proceedings only in those circumstances expressly provided for in the Swedish Arbitration Act, such as to assist in the composition of the arbitral tribunal or in the process of obtaining evidence. This standpoint is often referred to as “the principle of non-intervention”.

7.3.1 In an ad hoc arbitration taking place in Sweden, the arbitral tribunal determines the seat of arbitration if it has not been decided by the parties. Unless the parties have agreed otherwise, the arbitral tribunal may hold hearings and other meetings elsewhere in Sweden, or abroad. 62 Swedish Arbitration Act, s 22(2).  The legal significance of the seat of arbitration has also been confirmed by case law. 63 RosInvest Co UK Ltd v The Russian Federation NJA 2010 s. 508.  

7.3.2 If the SCC Rules apply, the seat of arbitration is decided by the SCC Board, unless otherwise agreed by the parties. 64 SCC Rules, art 25(1).  In the event that the parties have not made any agreement concerning the seat of arbitration, the SCC will usually choose Stockholm, unless another place is deemed more appropriate. Additionally, in SCC cases the arbitral tribunal may, after consultation with the parties, conduct hearings in a different location to the seat of arbitration. 65 Ibid, art 25(2).

7.3.3 The language of the arbitral proceedings is decided by the arbitral tribunal, unless otherwise agreed by the parties. This applies to an ad hoc arbitration as well as an SCC arbitration. 66 Ibid, art 26(1).  Although the Swedish Arbitration Act does not include specific provisions dealing with the power of the arbitral tribunal to decide the language of the arbitral proceedings, this is implied from the arbitral tribunal’s freedom to conduct the arbitral proceedings as it considers appropriate. 67 Swedish Arbitration Act, s 21.  

7.3.4 In determining the language to be used, the arbitral tribunal shall take into consideration all relevant circumstances – for example, the language that has been used by the parties in their business relationship and the language of the contract in dispute.

7.4.1 In ad hoc proceedings, one arbitration proceeding may be consolidated with another, provided that the parties agree thereto, consolidation would be to the benefit of the handling of the disputes and the same arbitral tribunal has been appointed in the arbitration proceedings. The arbitration proceedings may subsequently be separated if reasons for separation should occur. 68 Swedish Arbitration Act, s 23 a.  Further, if arbitration has been requested against more than one party and should these defending parties not agree on the appointment of their arbitrator, the district court will appoint one arbitrator for all defending parties on an application from one of them. Further, the district court will relieve the arbitrator appointed by the party requesting arbitration and instead appoint an arbitrator for that party. 69 Ibid, s 14(3).  

7.4.2 The SCC Rules provide that where there are multiple claimants or respondents and the arbitral tribunal is to consist of more than one arbitrator, the multiple claimants, jointly, and the multiple respondents, jointly, shall appoint an equal number of arbitrators. If either side fails to make such joint appointments, the SCC Board shall appoint the entire arbitral tribunal. 70 SCC Rules, art 17(5).  This rule exists to ensure that the parties are treated equally when the arbitral tribunal is established. 71 See the case before the French Cour de Cassation: Siemens AG and BKMI Industrienlagen GmbH v Dutco Consortium Construction Co. Revue de l’arbitrage 1992, pp 470–472.  If the SCC Board appoints all of the arbitrators, neither of the parties may argue that they were discriminated against in the appointment process. 

7.4.3 When it comes to consolidation, it is not considered possible under Swedish law to join arbitrations without the consent of all the parties involved. Under the SCC Rules, at the request of a party, the SCC Board may consolidate a newly commenced arbitration with a pending arbitration if the parties agree to consolidate, all the claims are made under the same arbitration agreement or, where the claims are made under more than one arbitration agreement, the relief sought arises out of the same transaction or series of transactions and the SCC Board considers the arbitration agreements to be compatible. 72 SCC Rules, art 15.  

7.4.4 The SCC Rules also contain provisions on multiple contracts in a single arbitration. Under these provisions, parties may make claims arising out of or in connection with more than one contract in a single arbitration. If any party raises objections as to all claims being determined in a single arbitration, the claims may still proceed in a single arbitration provided that the SCC does not manifestly lack jurisdiction over the dispute between the parties. 73 SCC Rules, art 14.  

7.5.1 The arbitrators shall afford the parties, to the extent necessary, an opportunity to present their cases in writing or orally. 74 Swedish Arbitration Act, s 24(1).  Further, a party shall be given an opportunity to review all documents and all other materials pertaining to the dispute which are supplied to the arbitral tribunal by the opposing party or another person. 75 Ibid, s 24(2).  

7.5.2 As a general rule, the arbitral tribunal establishes a time¬table for the arbitral proceedings at an initial stage of the proceedings. Within this timetable, the claimant is likely to be required to state its claims in respect of the issues set out in its request for arbitration, as well as provide its evidence in support thereof. The respondent then states its position in relation to the claims and, likewise, provide its evidence in support. 76 Ibid, s 23(1).

7.5.3 A statement of claim typically includes the following parts:

• prayers for relief;
• the facts of the issue stated in the request for arbitration; and
• the legal grounds in support of the prayers for relief.

7.5.4 The respondent’s statement of defence typically includes:

• any objections concerning the jurisdiction of the arbitral tribunal;
• a statement whether, and to what extent, the claimant’s prayers for relief are denied or admitted;
• any counterclaim or set-off;
• the facts of the issue; and
• the legal grounds supporting any counterclaim or set-off.

7.5.5 Under Swedish law, the prayers for relief are expected to be very specific so that there is no doubt as to the award sought. The parties are also expected to explain the legal grounds for each prayer for relief, ie referring to the legal notion and statutory provision on which they are based. The same applies to any counterclaim or set-off sought by the respondent.

7.5.6 Usually the documents and oral evidence on which the parties rely are submitted separately in a statement of evidence, although essential documents are sometimes already attached to the statements of claim and defence.

7.5.7 After the statements of claim and defence have been submitted they are usually followed by further submissions from both parties respectively (ie a reply to the statement of defence from the claimant and a rejoinder from the respondent). In some cases, the parties also submit post-hearing briefs after any oral hearing.

7.6.1 An oral hearing must be held at the request of a party prior to the determination of an issue referred to arbitration, even if the arbitral tribunal considers it unnecessary. 77 Ibid, s 24(1)  This provision is non-mandatory and can be deviated from if the parties so wish, for example by referring to the SCC Expedited Rules, under which a hearing only takes place at the request of a party and if the sole arbitrator considers the reasons for the request to be compelling. 78 SCC Expedited Rules, art 33(1).  

7.6.2 At the main hearing, witnesses are heard and factual as well as legal arguments are presented. The length of any hearing will vary depending on the complexity of the case. When deemed appropriate, the arbitral tribunal may arrange a preliminary hearing or a telephone conference in order to clarify some issues in the parties’ submissions. 

7.7.1 A party must be given an opportunity to review all documents and all other materials pertaining to the dispute which are supplied to the arbitrators by the opposing party or another person. 79 Swedish Arbitration Act, s 24(2)  This is a fundamental principle when conducting arbitration in Sweden.

7.7.2 Where one of the parties, without valid cause, fails to appear at a hearing or otherwise fails to comply with an order of the arbitrators, such failure does not prevent a continuation of the proceedings and a resolution of the dispute on the basis of the existing materials. 80 Ibid, s 24(3).  In the SCC Rules it is explicitly stated that a failure by the respondent to submit an answer shall not prevent the arbitration from proceeding, provided that the respondent has been properly notified. 81 SCC Rules, art 9(3).  

7.7.3 If a party has been afforded an opportunity to present its case but has failed to avail itself of this opportunity without valid reason, the arbitrators may, therefore, determine the dispute based on the material presented to them. 82 Ibid, art 35(2).  However, where the arbitrators are of the opinion that a party had a valid reason, they should afford the party a new opportunity to present its case.

7.7.4 Under the SCC Rules, the arbitral tribunal may draw such inferences it deems appropriate if a party without good cause fails to comply with any provision of, or requirement under, the SCC Rules or any procedural order given by the arbitral tribunal. 83 SCC Rules, art 35(3).  

7.7.5 The arbitrators are not entitled to issue awards in default. They must deal with the dispute substantively notwithstanding that one of the parties has failed to enter an appearance. There are no difficulties enforcing such an award in Sweden provided that the party against whom the award is invoked was given proper notice of the arbitration proceedings. The same applies to recognition and enforcement of foreign arbitral awards. 84 Swedish Arbitration Act, s 54(2).  

7.7.6 Under the SCC Rules any party may request that the tribunal decide one or more issues of fact or law by way of a summary procedure, without necessarily undertaking every procedural step that might otherwise be adopted for the arbitration. 85 SCC Rules, art 39(1).  In determining whether to grant such a request for summary procedure, the arbitral tribunal shall have regard to all relevant circumstances, including the extent to which the summary procedure contributes to a more efficient and expeditious resolution of the dispute. 86  SCC Rules, art 39(5)).

7.8.1 The parties are entitled to file new claims, or to amend or supplement their existing claims. The presumption is that the arbitral tribunal should be generous in allowing new claims or amendments, as long as they fall within the scope of the arbitration agreement and, taking into consideration the time at which they are submitted to the arbitral tribunal, the arbitral tribunal does not consider it inappropriate to adjudicate such claims or amendments. 87 Ibid, s 23(2). Under the SCC Rules, the arbitral tribunal must declare the arbitral proceedings closed when it is satisfied that the parties have had a reasonable chance to present their cases. 88 SCC Rules, art 40.  

7.9.1 There are very few rules of evidence in Swedish arbitration law. Consequently, it is unusual for the arbitral tribunal to reject evidence on the grounds that it is inadmissible. The arbitral tribunal has the right and duty to freely evaluate all the evidence presented by the parties. In general, the parties’ evidence is presented by means of the production of documents, hearing of witnesses, hearing of experts and inspection of the subject matter of the dispute. The arbitral tribunal may refuse to admit evidence which is manifestly irrelevant to the arbitral proceedings or, where such refusal is justified, having regard to the time at which the evidence is submitted. 89  Swedish Arbitration Act, s 25(2).

7.9.2 The arbitral tribunal may itself appoint experts, unless both parties oppose this step. The arbitral tribunal may not administer oaths or truth affirmations. Nor may it impose conditional fines or otherwise use compulsory measures in order to obtain evidence. 90 Ibid, s 25(3).  

7.9.3 In arbitral proceedings in Sweden, the parties are generally requested to submit a statement of evidence. This is a document indicating the evidence on which the respective parties intend to rely. This practice emanates from the rules of Swedish civil procedure. A statement of evidence includes the name of a witness or an identified document, and what the parties intend to prove with each item of evidence, ie the so-called “evidentiary theme”. The purpose of this statement is for the opposing party to be able to assess the need for cross-examination and rebuttal evidence.

7.9.4 Under Swedish arbitration law the arbitral tribunal may, at the request of a party, order the opposing party to produce documents in its possession. Although there are no express provisions as to the arbitral tribunal’s power in this regard in the Swedish Arbitration Act, guidance can be found in the Procedural Code and the SCC Rules (where applicable). 91 Procedural Code, ch 38, s 2 and SCC Rules, art 31(3).  Further, a party may ask for the Arbitral Tribunal’s permission to apply to a competent court that the counterparty shall produce evidence in the form of objects or documents. This request shall be granted by the arbitral tribunal if it considers it justified and the request shall be granted by the court if there are legal reasons to do so. 92 The Swedish Arbitration Act, s 26.  

7.9.5 When a party asks for documents which are in the other party’s possession, the document and its relevance must be properly identified and described. Hence, the Swedish approach is different from the discovery procedure often adopted in common law jurisdictions. Although the arbitral tribunal’s decision on the production of documents cannot be enforced, if a party fails to comply with the decision, the arbitral tribunal may attach negative evidentiary weight to such behaviour.

7.9.6 The IBA Rules on the Taking of Evidence in International Arbitration (IBA Rules) are applicable to arbitral proceedings in Sweden only if the parties have so agreed. However, even though not directly applicable, the IBA Rules often serve as a guide on how to conduct the taking of evidence in an efficient and reasonable manner. 93 For the full text of the IBA Rules see https://www.ibanet.org/ENews_Archive/IBA_30June_2010_Enews_Taking_of_Evidence_new_rules.aspx.  

7.10.1 The issue of confidentiality is not addressed by the Swedish Arbitration Act. In practice, arbitral proceedings are held in private and there is a general view that the arbitral tribunal must maintain confidentiality throughout the arbitral proceedings. However, case law suggests that a party to arbitral proceedings is not bound by confidentiality unless it has been explicitly agreed with the other party. 94 See the decision of the Swedish Supreme Court in Bulgarian Foreign Trade Bank Ltd (Bulbank) v A.I. Trade Finance Inc NJA 2000, p 538.  

7.10.2 The SCC Rules stipulate that, unless otherwise agreed by the parties, the SCC and the arbitral tribunal shall maintain the confidentiality of the arbitration and the award. 95 SCC Rules, art 3.  However, the SCC Rules do not impose any general confidentiality obligation on the parties.

8.1.1 Unless the parties have decided otherwise, the majority opinion of the arbitral tribunal shall prevail. If no majority is obtained, the opinion of the chair shall prevail. 96 Swedish Arbitration Act, s 30(2) and SCC Rules, art 41(1).  The chair’s casting vote differs from the corresponding provisions in the Model Law (1985), according to which majority voting is required for all types of decisions.

8.1.2 If an arbitrator fails, without valid cause, to participate in the deliberations or the determination of the dispute, that failure will not prevent the other arbitrators from ruling on the matter. 97 Swedish Arbitration Act, s 30(1) and SCC Rules, art 42(5).  Hence, it is permitted under Swedish law to have a “truncated tribunal” decide the dispute. This rule is important in order to prevent an arbitrator from sabotaging the proceedings. However, the application of this rule presupposes that the missing arbitrator has been afforded an opportunity to participate in the determination.

8.2.1 The issues which have been referred to the arbitral tribunal are decided in an award. When rendered, an award is final and binding on the parties.

8.2.2 An award must be made in writing. It must state the seat of arbitration and the date when it was made and needs to be signed by the arbitral tribunal. However, in exceptional cases it suffices that the award is signed by a majority of the arbitral tribunal or by the chair. 98 Swedish Arbitration Act, s 31(1).  In addition, the arbitral tribunal may decide a separate issue or part of the dispute in a separate award, unless opposed by both parties. 99 Ibid, s 29(1).

8.2.3 Where the arbitral tribunal terminates the arbitral proceedings without deciding on the issues referred to it, the termination shall be done through an award. Termination by an award will be done, for instance, when the parties have entered into a settlement agreement. 100 Ibid, s 27(1)–(2).  The arbitral tribunal may, upon the request of both parties, record the settlement in the form of a consent award. 101  Ibid, s 27(1)–(2) and SCC Rules, art 45 (1).

8.2.4 Other determinations which are not embodied in an award – for example, where the arbitrators find that they possess jurisdiction to decide a dispute, or as mentioned above when arbitration is dismissed – are designated as decisions. 102 Swedish Arbitration Act, s 27(3).  

Compensation of arbitrators

8.3.1 The parties are jointly and severally liable to pay reasonable compensation to the arbitral tribunal for its work and expenses. However, where the arbitral tribunal has stated in the award that it lacks jurisdiction to determine a dispute, the party that did not request arbitration is liable to make payment only insofar as required in special circumstances. 103 Ibid, s 37(1).  In a final award, the arbitral tribunal may order the parties to pay compensation to it, together with interest, calculated from the date occurring one month following the date of the award. 104 Ibid, s 37(2).  

8.3.2 A party that is dissatisfied with the payment of compensation to the arbitral tribunal may bring an action in the district court against the award. The action must be brought within two months from the date on which the party received the award. 105 Ibid, s 41(1).  The right to appeal the arbitral tribunal’s compensation applies to both ad hoc arbitrations and institutional arbitrations. 106 Soyak v W.M., K.H. and S.K. NJA 2008, p 1118, where the Supreme Court held that the arbitrators’ fees decided by the SCC could be appealed.  

8.3.3 The arbitral tribunal may request advance payment for its compensation and may fix separate advances for individual claims. 107 Swedish Arbitration Act, s 38(1).  However, as a rule, the parties are each asked to provide half of the advance. If a party fails to provide its part, the other party may provide the entire advance or may choose to commence court proceedings. 108 Ibid, s 5.  A party which fails to provide its share of the advance is considered to have waived any right it had to rely on the existence of the arbitration agreement as a bar to court proceedings. Where the requested advance on compensation is not provided, the arbitral tribunal may terminate the arbitral proceedings, in whole or in part. 109 Ibid, s 38(1).  

8.3.4 At the initial stage of the arbitral proceedings under the SCC Rules, the SCC sets an advance on costs (for the arbitral tribunal’s and SCC’s compensation) to be provided by the parties, with each paying half of the costs. 110 Ibid, art 51 (1).  If a party fails to pay its part of the advance on costs, the SCC gives the other party an opportunity to make such payment. 111 Ibid, art 51 (5). If the latter chooses to make such payment in order for the arbitration to continue, the arbitral tribunal may, at that party’s request, issue a separate award for reimbursement of the payment.

8.3.5 The costs of the arbitration consist of the fees and expenses of the arbitral tribunal and, in the case of an SCC arbitration, the SCC’s administrative fee and expenses. 112 SCC Rules, art 49(1)  In an SCC arbitration, the SCC Board determines such costs in accordance with a schedule of costs included in the SCC Rules and based on the amount in dispute.

Cost allocation

8.3.6 The arbitral tribunal’s fees and expenses, as ultimately decided by the arbitral tribunal or any arbitral institution, are established in the final award. The compensation payable to each arbitrator shall be stated separately. 113 Swedish Arbitration Act, s 37(2).  

8.3.7 The liability of each party in respect of the arbitral tribunal’s fees and expenses and the interest payable on those fees and expenses are dealt with above at paragraph 8.3.1.

8.3.8 Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order the opposing party to pay compensation in respect of the requesting party’s legal costs. The arbitral tribunal may, under the same conditions, determine the manner in which the compensation to the arbitral tribunal shall be finally apportioned between the parties, having regard to the outcome of the dispute and other relevant circumstances. 114  Ibid, s 42 and SCC Rules, art 49(6) and 50.

8.4.1 If the arbitral tribunal commits an obvious irregularity, it is permitted to correct the mistake without any involvement of the Swedish courts. Under the Swedish Arbitration Act, the arbitral tribunal can correct, supplement or interpret an award. 115 Swedish Arbitration Act, s 32(1).  Similar provisions are also to be found in the SCC Rules. 116 SCC Rules, art 47 and 48.  

8.4.2 The power of correction is limited to irregularities which are obvious oversights (ie clerical, typographical or computational errors), and does not include inaccuracies which can be traced back to errors in the application of the law or incorrect reasoning. A party can obtain interpretation of a specific point or part of the award if this is considered unclear.

8.4.3 The arbitral tribunal has the authority to make supplementary decisions in respect of matters that the arbitral tribunal, due to an oversight, has failed to determine.

8.4.4 A party seeking interpretation or correction of an award must make a request to the arbitral tribunal within 30 days. Subsequently, the arbitral tribunal must correct or interpret the award within 30 days of receiving the party’s request. If the request is for a supplemental award, the time limit is 60 days. 117 Swedish Arbitration Act, s 32(2).  The arbitral tribunal may, of its own motion, correct or supplement an award, but it must do so within 30 days of the award being delivered. Before any such decision is made, the parties should be afforded an opportunity to express their views with respect to the measure in question.

9.1.1 According to Swedish law, an arbitration agreement does not constitute a procedural impediment to a state court granting interim relief, such as freezing orders and other security measures. 118 Ibid, s 4(3) and Procedural Code, ch 15, s 5. A prerequisite for an interim measure from a state court is the applicant showing probable cause to believe that it has a claim against another party which is, or can be made, the basis of judicial proceedings or another similar procedure (ie arbitration). As set out in paragraph 5.2.3 above, only interim measures decided by a court are enforceable under Swedish law.

9.2.1 One of the main tasks of the courts in a pending arbitration is to support the taking of evidence. A party that requires a witness or an expert to testify under oath, another party to be examined under oath affirmation or another party or other person to produce a document or an object as evidence, must obtain the consent of the arbitral tribunal. If the arbitral tribunal considers that the measure is justified, having regard to the evidence in the case, it will approve the request, upon which the party must then submit an application to the district court. The district court shall grant the application if the evidence sought can be obtained lawfully. 119 Swedish Arbitration Act, s 26(1).

10.1.1 Under Swedish law, a distinction has been made between circumstances which are of such a serious nature that they result in an award automatically becoming invalid, and circumstances as a consequence of which the award may be set aside by a court upon an action brought by a party.

10.1.2 The provisions governing invalidity are not based on the Model Law (1985) but on a consideration of public interest and the interest of third parties. Thus, an award rendered in Sweden is invalid if:

• it includes the determination of an issue which, in accordance with Swedish law, may not be decided by an arbitral tribunal;
• the award, or the manner in which the award arose, is clearly incompatible with the basic principles of the Swedish legal system; or
• the award does not fulfil the formal requirements regarding to its written form and signature in accordance with section 31(1) of the Swedish Arbitration Act. 120 Ibid, s 33.

10.1.3 The circumstances set out above are exhaustive and cannot be waived. Due to the serious nature of the invalidity grounds it is exceptionally rare for them to apply. Note also that invalidity may apply only to a part of the award. 

10.2.1 It is a fundamental principle of Swedish law that an award cannot be amended or set aside in the event of the incorrect application of the law or the incorrect evaluation of evidence. However, a court can set aside an award if the arbitrators have committed a severe procedural error.

10.2.2 An award may be wholly or partially set aside, upon the motion of a party, on the following grounds:

1. the award is not covered by a valid arbitration agreement between the parties;
2. the arbitral tribunal has made the award after the expiration of the period decided on by the parties;
3. the arbitral tribunal has exceeded its mandate in a manner which probably influenced the outcome of the arbitral proceedings;
4. the arbitral proceedings should not have taken place in Sweden;
5. an arbitrator has been appointed contrary to the agreement between the parties or the Swedish Arbitration Act;
6. an arbitrator did not have legal capacity or was not properly impartial; or
7.  without the fault of the party, an irregularity has otherwise occurred in the course of the arbitral proceedings which probably influenced the outcome of the arbitral proceedings. 122 Ibid, s 34(1). See for example the judgment from the Swedish Supreme Court in Joint Stock Company Belgorkhimprom v Koca Inșaat Sanayi Ihracat Anonim Șirketi NJA 2019 s. 171, where the Supreme Court tried challenges of an arbitral award under sub-paragraphs 1, 3 and 7.

10.2.3 In Sweden, only a very limited number of challenges lead to awards being set aside. The grounds most frequently invoked by the applicants are sub-paragraphs (iii) and (vii) above.

10.2.4 Notably, a party is not entitled to rely upon a ground which it may be deemed to have waived by participating in the arbitral proceedings without objection. In certain cases, a party may be required to expressly reserve the right to challenge the award or otherwise express its protest, failing which the party will be deemed to have waived the right to rely on the error. Such a protest, for example, may relate to the continuation of the proceedings after the arbitral tribunal has ruled that it possess jurisdiction to try the dispute.

10.2.5 A challenge must be brought within two months from the date upon which the party received the award. The action shall be considered by the Court of Appeal, whose determination cannot be appealed. 123 There are six courts of appeal in Sweden, whose jurisdiction is determined by geographical area: Svea Court of Appeal in Stockholm; Göta Court of Appeal in Jönköping; the Scania and Blekinge Court of Appeal in Malmö; the Court of Appeal for Western Sweden in Gothenburg; the Court of Appeal for Southern Norrland in Sundsvall; and the Court of Appeal for Northern Norrland in Umeå.  However, the Court of Appeal may grant a party leave to appeal the determination to the Supreme Court in circumstances where it is of importance as a matter of precedent. A leave of appeal from the Supreme Court is also required for the Court of Appeal’s judgment to be tried by the Supreme Court. 124  Swedish Arbitration Act, s 43(2).

10.2.6 In the proceedings before the Court of Appeal or the Supreme Court, a party may request that oral evidence is taken in the English language without translation. 125 Ibid, s 45 a.  

10.2.7 Foreign parties, ie those which are neither domiciled nor have a place of business in Sweden, may agree to exclude or limit the application of the grounds for setting aside an award in challenge proceedings through a binding “exclusion agreement”. An award that is subject to such an exclusion or limitation agreement shall be recognised and enforced in Sweden in accordance with the rules applicable to foreign awards (see section 11.2 below). 126 Ibid, s 51.

11.1.1 The Swedish Arbitration Act does not include any provisions on the recognition and enforcement of Swedish awards in Sweden. Such provisions are found in the Swedish Enforcement Code. Swedish awards are enforced based on an application for execution filed with the Swedish Enforcement Authority (SEA).

11.1.2 The SEA may refuse the execution of an award only in situations where the award does not meet the requirements of written form and signature, or if the arbitration agreement includes a right to appeal the award on the merits.

11.1.3 Furthermore, if the SEA believes that an award may be invalid because the issue decided is non-arbitrable, or because the award is against public policy, it must direct the party seeking enforcement to initiate court proceedings concerning the validity of the award (if this has not already been done).

11.2.1 Foreign awards are, as a general rule, recognised and enforced in Sweden. 127 Ibid, s 53.  An application for enforcement must be lodged with the Svea Court of Appeal in Stockholm and undergo exequatur proceedings. The application is communicated to the opposing party, thereby providing it with an opportunity to express its opinion on that application.

11.2.2 The grounds for refusal of enforcement are based on the New York Convention 128 For the full text of the New York Convention (1985) see https://www.uncitral.org/pdf/english/texts/arbitration/NY-conv/New-York-Convention-E.pdf  and laid down in the Swedish Arbitration Act. Accordingly, foreign awards are not enforced if the party against whom the award is invoked proves that:

• pursuant to the law applicable to them, the parties to the arbitration agreement lacked capacity to enter into the agreement or were not properly represented;
• the arbitration agreement was not valid, either under the law to which the parties subjected it or, failing any indication thereof, under the law of the country where the award was made;
• the party against whom the award is invoked was not given proper notice of the appointment of the arbitral tribunal or the arbitral proceedings, or was otherwise unable to present their case; 129 Lenmorniiproekt OAO v Arne Larsson & Partner Leasing AB NJA 2010 s. 219, where the Supreme Court refused to enforce a Russian award due to the unsatisfactory notice given to the other party.
• the award deals with a dispute not falling within the arbitral tribunal’s mandate (ie it deals with disputes not falling within or contemplated by the terms of the request for arbitration or contains a decision on matters beyond the scope of the arbitration agreement), provided that where those parts of the dispute that fall outside of the arbitral tribunal’s mandate can be separated, that part of the award which contains decisions on matters falling within the mandate shall be recognised and enforced;
• the composition of the arbitral tribunal, or the arbitral procedure, was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitral proceedings took place; or
• the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the laws of which, the award was made. 130 Swedish Arbitration Act, s 54.

11.2.3 Enforcement of a foreign award will also be refused where a court finds that:

• the award includes the determination of an issue which, in accordance with Swedish law, may not be decided by an arbitral tribunal; or
• it would be clearly incompatible with the basic principles of the Swedish legal system to recognise and enforce that award (ordre public). 131 Swedish Arbitration Act, s 55.