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Starting an arbitration proceeding
What is needed to commence arbitration?
Under the Arbitration Act, unless otherwise agreed by the parties, arbitral proceedings are commenced when a party receives a request for arbitration. The request for arbitration should be in writing and include the following information:
- an express and unconditional request for arbitration;
- a statement of the issue which is covered by the arbitration agreement and which is to be resolved by the arbitrators; and
- a statement of the party’s choice of arbitrator where the party is required to appoint an arbitrator.
Are there any limitation periods for the commencement of arbitration?
The Arbitration Act contains no specific rules regarding time limits for the commencement of arbitration.
Should a claim be subject to a statute of limitations (either by an agreement or by law), it must be tried by the arbitrators as grounds for dismissal. Thus, a statute barring, for example, a payment claim does not result in the arbitration agreement lapsing.
Are there any procedural rules that arbitrators must follow?
In general, the Arbitration Act allows the parties to agree on the conduct of the proceedings as they see fit. In the absence of any agreement regarding the conduct of the proceedings, the tribunal may conduct the arbitration as it considers appropriate, subject to the Arbitration Act and institutional rules, if applicable. There are a rules safeguarding due process that must be observed, including the following:
- The arbitrators must handle the dispute in an impartial, practical and speedy manner.
- The parties must be afforded an opportunity to present their respective cases in writing or orally, to the extent necessary.
- The parties may not give the tribunal powers exclusively reserved to the courts, such as the administering of oaths or truth affirmations, imposition of conditional fines or other compulsory measures in order to obtain requested evidence.
- The parties may not agree to exclude or restrict the rules governing invalid awards. However, non-Swedish parties may agree to waive in advance the applicability of the grounds for setting aside an award.
Are dissenting opinions permitted under the law of your jurisdiction?
Yes, dissenting opinions are permitted.
Can local courts intervene in proceedings?
Swedish courts are arbitration friendly and have no competence to intervene in arbitral proceedings. A separate issue is that Swedish courts have jurisdiction over certain elements of the procedure, as the parties may request the court’s assistance in order to:
- conduct witness examinations under oath;
- order the production of documents;
- appoint or remove an arbitrator; and
- order enforceable interim measures.
Can the local courts assist in choosing arbitrators?
Yes. If a party, an arbitrator or another entity that is required to appoint an arbitrator fails to do so, the district court will, on request of a party, appoint the arbitrator in question.
What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration? Can the courts compel parties to arbitrate? Can they issue subpoenas to third parties?
Section 24 of the Arbitration Act provides that if a party fails to appear at a hearing or otherwise fails to comply with an order from the arbitrators without a valid reason, such failure shall not prevent a continuation of the proceedings or a resolution on the dispute on the basis of the existing materials. However, if such situation occurs, the tribunal must consider the case as if both parties were actively engaged in the arbitral proceedings.
The courts cannot compel parties to arbitrate (although they can assist in choosing an arbitrator), nor can they issue subpoenas to third parties.
In what instances can third parties be bound by an arbitration agreement or award?
In principle, arbitration agreements and awards are binding solely on the parties. However, in certain situations, arbitration agreements and awards may be binding on third parties.
For example, in case of universal succession and as a main rule in case of singular succession, the successor is bound by the arbitration agreement which was binding on the succeeded party. In cases of bankruptcy, the bankruptcy estate is bound by the arbitration agreement entered into by the debtor and its joint party before the onset of the bankruptcy.
In certain other cases, arbitration agreements and awards may be binding in relation to third parties. For example, an arbitration agreement included in a contract between a creditor and debtor may, under certain circumstances, be binding in relation to the guarantor.
Default language and seat
Unless agreed by the parties, what is the default language and location for arbitrations?
If the parties have not agreed on the place or seat of arbitration, the tribunal will determine the issue. The tribunal may hold hearings and other meetings in places other than the place of arbitration (unless the parties have agreed otherwise).
If the parties cannot agree on the language of the arbitration, the tribunal will decide on this issue, taking into account for example:
- the nationality of the parties and their counsel;
- the language of the contract and other documents; and
- the language used in any correspondence between the parties.
How is evidence obtained by the tribunal?
The tribunal may, at a party’s request, order the other party or a third party to produce documents that may be of evidentiary value. However, such orders are unenforceable. If a party refuses to provide the documents ordered by the tribunal, the tribunal may permit a party to request that the district court orders the production. A court order is enforceable.
What kinds of evidence are acceptable?
In general, any evidence is admissible and the tribunal is free to determine the weight and relevance of the evidence in each case. However, according to Section 25 of the Arbitration Act, the arbitrators may refuse to admit evidence that is manifestly irrelevant to the case or if such refusal is justified, having regard to the time at which the evidence was offered.
Is confidentiality ensured?
The Arbitration Act contains no provisions dealing with confidentiality. Nevertheless, arbitration in Sweden is considered to be private (as opposed to public), but not confidential in all aspects.
According to Swedish case law, the parties to arbitration proceedings are not bound by confidentiality, unless they have explicitly agreed on this. However, disclosure of information outside the arbitral proceedings can of course be protected by other regulations, such as the Swedish Trade Secret Act.
Counsel, arbitrators and arbitration institutions are bound by confidentiality corresponding to their specific roles. With respect to arbitrations conducted under the Stockholm Chamber of Commerce (SCC) Arbitration Rules, it is explicitly stated in Article 46 of the SCC Rules that the SCC and the tribunal, unless otherwise agreed by the parties, must maintain confidentiality of the arbitration and the award.
Can information in arbitral proceedings be disclosed in subsequent proceedings?
Yes. If, for example, the arbitral award is challenged before the court of appeal, the award and any other documents filed to the court will generally be made public, in accordance with the rule of public access. There are statutory grounds for requesting the court to maintain confidentiality with respect to some information.
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
Although no specific ethical code applies to arbitrators, they must respect the ethical responsibilities set out in the Arbitration Act, including to:
- maintain impartiality;
- conduct the arbitral proceeding in an efficient manner; and
- provide both parties with sufficient opportunity to present their case.
Counsel and arbitrators who are members of the Swedish Bar Association are also required to observe the Bar Association’s Code of Professional Conduct. This includes, among other things, the requirement to observe confidentiality.