1 See eg Govt Bill 1998/99:35, p 46.
3 Esselte AB v Allmänna Pensionsfonden (NJA 1998 p 189).
9 Cf Article 23(1) of the SCC Rules.
10 Redfern and Hunter, Law and Practice of International Commercial Arbitration (4th edn, 2004) 264.
11 Cf Article 23(2) of the SCC Rules.
12 Cf Article 23(2) of the SCC Rules which states that the arbitrators shall give ‘each party an equal and reasonable opportunity to present its case’. This principle is qualified in the UNCITRAL Model Law by the words ‘each party shall be given a full opportunity of presenting his case’ (Article 18).
13 Cf Article 35 of the SCC Rules.
16 See section 25(2) of the SAA. Cf Article 31(1) of the SCC Rules.
17 Section 19 of the SAA.
18 Govt Bill 1998/99, p 224.
19 Section 23 of the SAA.
20 Govt Bill 1998/99:35, p 106; see para 6.81.
21 Govt Bill 1998/99:35, p 102.
23 In accordance with Appendix II to the SCC Rules, the fee amounts to €1,500.
24 Section 19 provides that: ‘unless otherwise agreed by the parties, the arbitral proceedings are initiated when a party receives a request for arbitration’ (author’s emphasis).
25 Kenneth O v Motor Union Assuransfirma AB (NJA 1993 p 308).
26 See generally Englund, ’Användande av E-post vid underrättelser enligt lagen om skiljeförfarande’, Juridisk Tidskrift (2009) 133, arguing, based on a district court decision, that email notifications meet the requirement that notifications be in written form, but that the fulfilment of the requirement of proof of notification is more uncertain.
27 Section 54(1)(2) corresponds to Article V(1)(b) of the New York Convention.
30 Cf Lindskog, Skiljeförfarande, En kommentar (3rd edn, 2020) 83–84.
32 Christine L and Sven A (NJA 1999 p 300).
33 The question of who is authorized to represent a legal entity, and to accept service of documents on behalf of the legal entity, is governed by the lex corporationis; see para 2.174.
34 Article 42(4) of the SCC Rules.
35 Arbitration Institute of the Stockholm Chamber of Commerce, Arbitrator’s Guidelines (2019) p 20.
38 Cf Article 6 of the SCC Rules, which describes the request for arbitration in more detail. See para 6.35.
41 Cf ibid, Article 29(1).
42 Cf ibid, Article 29(2).
43 Cf ibid, Article 29(3).
44 Cf ibid Article 32(1).
45 Cf ibid, Article 41(1).
46 See Calissendorff, ‘Jura Novit Curia i Internationella Skiljeförfaranden i Sverige’ Juridisk Tidskrift (1995/96) 141; Hobér, Extinctive Prescription and Applicable Law in Interstate Arbitration (2001) 140–141; Runesson, ‘Jura Novit Curia and Due Process with Particular Regard to Arbitration in Sweden’ Juridisk Tidskrift (2017/18) 172; Madsen, ‘Concerning the Principle of Jura Novit Curia In Arbitration from a Swedish Perspective’ 63 Scandinavian Studies in Law (2017).
48 Chapter 42, section 2 of the Procedural Code.
50 See Hobér in Bishop (ed), The Art of Advocacy in International Arbitration (2004) 182.
51 Cf Articles 29(2) and 30 of the SCC Rules.
52 Cf ibid, Article 29(2) which provides that a counterclaim or set-off claim shall be included in the Statement of Defence. However, in accordance with Article 30 of the SCC Rules, the claims, including counterclaims and set-off claims may be amended or supplemented at any time prior to the close of the proceedings pursuant to Article 40 of the said rules, unless the arbitrators consider it inappropriate.
53 Govt Bill 1998/99:35, p 226.
54 Cf Article 30 of the SCC Rules, Article 23.2 of the UNCITRAL Model Law, and Article 20 of the UNCITRAL Arbitration Rules.
56 Govt Bill 1998/99:35, p 226.
57 Cf section 42 of the SAA.
58 Karl Gustaf G v Nils S (NJA 1984 p 215).
59 As discussed at para 3.130 et seq the arbitration agreement may, however, in certain situations also have effect in relation to third parties.
60 If the claimant withdraws his claim in its entirety before the arbitral tribunal is constituted or before the statement of claim has been submitted, eg before the respondent has incurred any substantial costs, it could perhaps be argued that the respondent has no unconditional right to obtain an award, see Heuman, Arbitration Law of Sweden: Practice and Procedure (2003) 418.
62 Heuman, Arbitration Law of Sweden: Practice and Procedure (2003) 418.
63 Govt Bill 1998/99:35, p 129.
64 The first paragraph of section 27 reads: ‘The issues which have been referred to the arbitrators shall be decided in an arbitral award. Where the arbitrators terminate the arbitral proceedings without deciding such issues, this shall also be done in an arbitral award’. See para 7.22 for a discussion of different kinds of awards and decisions.
65 Govt Bill 1998/99:35, p 231.
66 Cf Redfern and Hunter, Law and Practice of International Commercial Arbitration (4th edn, 2004) 325.
67 Cf Heuman, Arbitration Law of Sweden: Practice and Procedure (2003) 402–403, and Redfern and Hunter, Law and Practice of International Commercial Arbitration (4th edn, 2004) 326; cf Article 40 of the SCC Rules and Chapter 43, section 14 of the Procedural Code.
68 In some instances it may be necessary to have more than one round of post-hearing submissions. Moreover, in large international arbitrations it is sometimes suggested that the arbitrators should hold a very limited oral hearing after the submission of post-hearing briefs in order to clarify that it is satisfied that the parties have had a reasonable opportunity to present their cases and that all issues are correctly understood by the arbitrators.
69 Govt Bill 1998/99:35, p 115. But see Article 31 SCC Rules, which sets forth a slightly modified approach.
71 International Bar Association’s 2nd edition 1999 of its Rules adopted by a resolution of the IBA Council on 29 May 2010.
72 See Foreword to the IBA Rules by David W Rivkin in the 2nd edition of the 1999 Rules adopted on 1 June 1999.
73 See SOU 1994:81, p 184.
74 Govt Bill 1998/99:35, pp 117–118.
75 Arbitration in Sweden (2nd revised edn, 1984) 118.
76 Cf Redfern and Hunter, Law and Practice of International Commercial Arbitration (4th edn, 2004) 298.
77 The principle of free evaluation of evidence is generally accepted in international arbitration; see, for example, Article 25(6) of the 1976 UNCITRAL Arbitration Rules.
78 Svea Court of Appeal, Case T 5296-14, 19 February 2016. See further para 8.148.
82 Cf Lindskog, Skiljeförfarande, En kommentar (3rd edn, 2020) 733–735.
83 Rolf Gummesson AB v Securitas Teknik AB (NJA 1998 p 829). See also Heuman, Arbitration Law of Sweden, Practice and Procedure (2003) 453–455.
84 See Chapter 38, section 2 of the Procedural Code.
85 See Article 31(3) of the SCC Rules.
88 For details, see Brocker, Discovery in International Arbitration—the Swedish Approach, SAR 2001:2, p 19.
89 The relevant provisions in the Swedish Procedural Code are the following:
Chapter 36, Section 5
Persons who may not provide information pursuant to either the Public Access to Information and Secrecy Act (2009:400), Chapter 15, Section 1 or 2, Chapter 16, Section 1 or Chapter 18, Section 5, 6 or 7 or any provision referred to in any of these statutory provisions, may not be heard as a witness concerning that information without the permission by the authority in the activity of which the information has been obtained.
Attorneys, physicians, dentists, midwives, trained nurses, psychologists, psychotherapists, officers at family guidance, officers under the Social Services Act (2001:453) and their counsel, and authorised patent attorneys and their counsel in relation to matters of patent law under section 2 of the Act on Authorization of Patent Counsel (2010:1052) may not testify concerning matters entrusted to, or found out by, them in their professional capacity unless the examination is authorized by law or is consented to by person for whose benefit the duty of secrecy is imposed. Mediators under this Act, the Rental Boards Act (1973:188) or the Act on Mediation in Certain Private Law Disputes (2011:860) may not testify concerning matters entrusted to, or found out by, them in their professional capacity unless the examination is authorized by law or is consented to by the person for whose benefit the duty of secrecy is imposed. A person who pursuant to the Public Access to Information and Secrecy Act (2009:400), Chapter 24, Section 8, may not provide the information therein referred to, may be heard as a witness concerning that information only if authorised by law or the person for whose benefit the duty of secrecy is imposed consents thereto.
Attorneys, counsel or defence counsel may be heard as a witness concerning matters entrusted to them in the performance of their assignment only if the party gives consent.
Notwithstanding the provisions in the second and third paragraphs, there is an obligation to give evidence for
Ministers of a congregation other than the Church of Sweden or those having a corresponding standing in such a congregation may not be heard as a witness concerning matters about which they have been informed at a secret confession or else during conversations for pastoral care.
Anyone who is bound by duty to observe secrecy pursuant to the Freedom of Press Act, Chapter 3, Section 3, or the Fundamental Law on the Freedom on the Freedom of Expression, Chapter 2, Section 3, may be heard as a witness concerning the circumstances to which the secrecy duty relates only to the extent prescribed by the said sections.
If pursuant to what is stated in this section a person may not be heard as a witness concerning a particular circumstance, nor may a witness examination occur with the person who, bound by duty of secrecy, has assisted with interpretation or translation.
Chapter 36, Section 6
A witness may decline to testify concerning a circumstance that should reveal that he, or a person related to him as stated in Section 3, has committed a criminal or dishonourable act.
Further, a witness may refuse to give testimony that should involve disclosure of a trade secret. A witness may also refuse to disclose personal information about a private individual under Chapter 35, Section II of the Public Access to Information and Secrecy Act (2009:400).
Paragraph 2 does not apply if there is extraordinary reason for examining the witness on the matter.
Chapter 38, Section 2
Anybody holding a written document that can be assumed to be of importance as evidence is obliged to produce it; in criminal cases, however, such a obligation is not imposed upon the suspect or any person related to him as stated in Chapter 36, Section 3.
Neither a party, nor any person related to him as stated above, is obliged to produce written communication between party and such a related person or between such related persons. Neither a public official nor any other person referred to in Chapter 36, Section 5, may produce a written document if it can be assumed that its contents are such that he may not be heard as a witness thereto; when the document is held by the party for those who benefit an obligation of confidentiality is imposed, the party is not obliged to produce the document. The provision in Chapter 36, Section 6, as to the privilege of a witness to refuse to testify shall correspondingly apply to the holder of a written document if the contents of the document are such as referred to in the said Section.
The obligation to produce written documents does not extend to jottings or any other personal notes exclusively for one´s private use unless extraordinary reason exists for their production.
90 Cf Govt Bill 1998/99:35, pp 116–117.
91 Hanotiau, Document Production in International Arbitration—2006 Special Supplement, ICC International Court of Arbitration Bulletin, p 118.
92 It is possible, however, to hear witnesses under oath before the competent District Court, subject to the consent of the arbitral tribunal; section 26(1) of the SAA; see discussion at para 6.169.
94 Hobér in Bishop (ed), The Art of Advocacy in International Arbitration (2004) 187.
95 The SAA is silent in this respect but this principle is set forth in Chapter 36, section 17(1) and (5) of the Procedural Code. There is general agreement that the same rules should also apply to arbitration proceedings in Sweden.
96 As mentioned above in para 6.123, under Swedish law it is not improper to interview and to prepare witnesses prior to the main hearing; see Article 4(3) of the IBA Rules on the Taking of Evidence in Commercial Arbitration.
97 Hobér in Bishop (ed), The Art of Advocacy in International Arbitration (2004) 189.
99 Neubauer, ‘Mastering the Blind Cross-Examination’ 35(2) Litigation (2009); see also generally Hobér and Sussman, Cross-Examination in International Arbitration (2015).
100 Wellman, The Art of Cross-Examination (2nd edn, 1903), republished by the American Bar Association in 2009, p 8.
101 Cf Neubauer, ‘Mastering the Blind Cross-Examination’.
102 Cf Chapter 36, section 17(2) and (5) of the Procedural Code.
103 For a general discussion, see Hobér and Sussman, Cross-Examination in International Arbitration (2015) Part 2; Cremades and Cairns, ‘Cross-examination and International Arbitrations’, in Hobér, Magnusson, and Öhrström (eds), Between East and West: Essays in Honor of Ulf Franke (2010) 91 et seq.
105 See Article 33(2) of the SCC Rules and Article 4 of the IBA Rules on the Taking of Evidence in Commercial Arbitration (2nd edn, 1999); cf the general practice in Swedish domestic arbitration proceedings where the use of written witness statements is still unusual.
106 Cf section 24 of the SAA and Article 33(3) of the SCC Rules.
107 See Chapter 35, section 14(2) of the Procedural Code, which provides for an exception to the general prohibition against affidavits in judicial procedure if both parties so agree and the court does not consider this to be manifestly inappropriate.
108 See section 25, first paragraph of the Arbitration Act; cf Article 34 of the SCC Rules.
109 Govt Bill 1998/1999:35, p 116.
111 For comments in general on this situation, see Sharpe, ‘Drawing Adverse Interferences from Non-Production of Evidence’ 22(4) Arbitration International (2006) 549–571; van Houtte, ‘Adverse Interferences in International Arbitration’, in Giovannini and Moure, Written Evidence and Discovery in International Arbitrations—New Issues and Tendencies, ICC Dossiers (2009) 195.
112 See Nilsson, ‘Negative Inferences: An Arbitral Tribunal’s Power to Draw Adverse Conclusions from a Party’s Failure to Comply with the Tribunal’s Orders’, in Hobér, Magnusson, and Öhrström (eds), op cit, 351 et seq.
114 Bogdan, Svensk internationell privat- och processrätt (8th edn, 2014) 115–116.
116 Bogdan, Svensk internationell privat- och processrätt (8th edn, 2014) 119.
117 Govt Bill 1999/98:35, p 229.
124 Article 25 of the SCC Rules reflects the position of Swedish arbitration law in this respect, as confirmed by the Supreme Court in RosInvestCo v Russian Federation (NJA 2010 p 508), discussed supra at para 5.30. Previous to this judgment, a 2005 decision by the Svea Court of Appeal, Alcatel CITSA v The Titan Corporation (RH 2005:1), had attracted criticism from scholars and practitioners. In that decision, the Court refused to accept jurisdiction to hear a challenge of an award which identified Stockholm as the place of arbitration and which was based on an arbitration agreement identifying Stockholm as the place of arbitration, but where the hearings took place in London.
125 Cf Govt Bill 1998/99:35, pp 113–114 and 225.
127 If the parties have not agreed on the number of arbitrators, there shall be three by default, see section 13 of the SAA.
128 Cf Article 17(4) of the SCC Rules where it is stated that ‘the Board shall appoint the Chairperson’, ie the Board of the SCC Institute.
129 See Briner, ‘The Role of the Chairperson’, in Newman and Hill (eds), The Leading Arbitrators’ Guide To International Arbitration (2nd edn, 2008) 66.
130 See Govt Bill 1998/99:35, p 110.
131 Ibid, p 111 where it is said that delegation of authority ‘ought to’ rest on an agreement between the arbitrators and the parties. However, as long as it is a question purely of case management it is doubtful that there is a need for the parties’ consent. Cf Article 41(2) of the SCC Rules which entitles the arbitral tribunal to decide that the chairperson alone may make procedural rulings.
134 There seems, however, to be some support in Swedish case law for the proposition that the principle does apply also in international arbitrations seated in Sweden, see MHH AS v Axels Konsult och Förvaltning, Svea Court of Appeal, Case No T 2610-13, 4 December 2014, discussed in Runesson, ‘Jura Novit Curia and Due Process with Particular Regard to Arbitration in Sweden’ Juridisk Tidskrift (2017/18) 172.
135 Cf Article 24 of the SCC Rules.
136 In addition to verbatim recording of the hearing, real-time reporting (or live notes) is efficient, in particular in respect of cross-examination of witnesses. Real-time reporting instantly displays the transcribed text on the laptop computer as the reporter is recording what is being said.
137 Cf Göthlin and Bexelius, ‘Voluntary Solutions to Procedural Problems’, in Hobér, Magnusson, and Öhrström, op cit, 175 et seq.
144 See generally Hobér, ‘Courts or Tribunals?’, in Tung, Fortese, and Baltag (eds), Finances in International Arbitration: Liber Amicorum Patricia Shaughnessy (2019) 207–208.
145 See section 4(3) of the SAA.
146 See para 5.21 et seq for a discussion of the jurisdiction of Swedish courts. A request for security measures may be made in parallel with the arbitration proceedings or even prior to the commencement of such proceedings. In the latter case the claimant must commence arbitration proceedings within one month from the date of the decision of the court, failing which the security measure must immediately be reversed (Chapter 15, section 7 of the Procedural Code). In contrast to interim awards on security measures rendered by the arbitrators, the decision of a Swedish court is enforceable in Sweden (Chapter 16, sections 11–16 of the Swedish Enforcement Code). In addition, the court could impose a fine on the opposing party with a view to having that party comply with the security measure (Chapter 15, section 3 of the Procedural Code).
148 It should be noted however that the amended version of Article 17 of the UNCITRAL Model Law provides for a system under which an order for interim measures is binding and enforceable under certain conditions.
149 Similar provisions on interim measures are found in Article 37 of the SCC Rules.
150 Cf Article 32(1) of the SCC Rules.
151 Lindskog, Skiljeförfarande, En kommentar (3rd edn, 2020) 697–700.
152 Heuman, Arbitration Law of Sweden: Practice and Procedure (2003) 475, who refers, inter alia, to Mustill and Boyd, Commercial Arbitration (1989) 312.
153 As a result of recent amendments to the Procedural Code, the principle of immediacy is not emphasized as much as it used to be in judicial procedure. However, in judicial procedure the parties must still refer the court to the documents it wishes to rely on, but the documents must not be reviewed during the hearing.
156 See para 6.86 with respect to post-hearing briefs.
164 See Håvedal-Ipp, op cit, for a review of twelve such decisions.
166 UNCITRAL Model Law on International Commercial Arbitration, Article 17.
167 Håvedal-Ipp, op cit, p 17.
168 Cf ibid. See also Hobér, ‘Emergency Arbitration in Stockholm’, in 63 (2017) Scandinavian Studies in Law 76–82; Dahlquist Cullborg, The Use of ‘non-ICSID’ Arbitration Rules in Investment Treaty Disputes (2019) 252–270 for a review of emergency arbitrator decisions in treaty-based disputes under the SCC Rules.
169 Article 3 of Appendix II.
170 Article 9(4) of Appendix II.
171 Article 29 and Appendix V.
172 Article 26(2) and Schedule I.