The Arbitration Institute of the Stockholm Chamber of Commerce (SCC) celebrated its 100th anniversary in 2017. Since its establishment in 1917, it has developed into one of the world's leading forums for international dispute resolution. In its centennial year, it celebrated the importance of international arbitration for trade, economic development and the peaceful resolution of disputes.
Arbitral proceedings in Sweden are governed by the Swedish Arbitration Act of 1999 (Act).2 Although the Act is heavily inspired by the UNCITRAL Model Law on International Commercial Arbitration (Model Law), it includes some traditional Swedish features, mostly with respect to the legislative style. It should be emphasised, however, that there are no provisions in the Act that deviate from, let alone contradict, the general approach taken by the Model Law. The Act governs both domestic and international arbitral proceedings, but with some provisions being applicable only in international arbitral proceedings. In addition, the Act includes provisions on the recognition and enforcement of arbitral awards, which transform the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards into Swedish law.
International arbitration in Sweden is to a large extent synonymous with arbitral proceedings under the SCC Rules. The SCC provides rules for ordinary arbitral proceedings, expedited proceedings and emergency arbitrator proceedings. In addition, in Appendix III to the SCC Rules, there are specific provisions applicable in investment treaty disputes. That said, there are several other international arbitral proceedings – for example, proceedings under the ICC Rules or ad hoc proceedings under the UNCITRAL Rules – that are handled by Swedish arbitrators or that have Sweden as their seat for the arbitral proceedings, or both.
In 2018, the SCC administered 152 cases, which was a decrease in the number from previous years. However, the total amount in dispute increased quite dramatically to a total of €13.3 billion. It is not possible to draw any general conclusions from just one year's statistics: only time will tell if this development is part of a trend or the result of circumstances that only occur occasionally. Of the new cases in 2018, 50 per cent were international, with parties from 43 different countries. Russia is the foreign state that most frequently appears before the SCC, followed by Germany, Ukraine and Azerbaijan. The SCC is the second-largest forum (after ICSID) in the world for investor–state disputes, with six new cases administered during 2018.
The arbitral proceedings initiated in 2018 involved disputes stemming from a wide range of contract subjects. Most frequently, parties brought disputes arising out of delivery contracts, service contracts, business acquisitions, construction contracts and shareholders' agreements.
For the majority of awards rendered under the SCC Arbitration Rules in 2018, it took between six to 12 months from the time of registration of a case until the rendering of an award.
II THE YEAR IN REVIEW
i Developments affecting international arbitration
The new SCC Rules
As of 1 January 2017, the new SCC Arbitration Rules and SCC Rules for Expedited Arbitration entered into force. The new rules include a number of noteworthy revisions and innovations that will make arbitration more user-friendly as the SCC enters its second century. The most important areas of amendments are as follows:
- the inclusion of provisions regarding joinder of additional parties (Article 13) and multi-contract disputes (Article 14);
- clarifications regarding the consolidation of arbitrations (Article 15);
- the inclusion of provisions regarding an administrative secretary of the arbitral tribunal (Article 24);
- the inclusion of provisions regarding security for costs (Article 38); and
- the inclusion of provisions regarding summary procedures (Article 39).
Similar amendments may be found in the SCC Rules for Expedited Arbitration. With respect to the provisions on joinder and multi-contract disputes, the new SCC Rules are aligned with the increased complexity at hand in commercial disputes today.
Out of the 152 new cases in 2018, 52 were expedited cases. This is a slight decrease in number compared to 2017, but the disputes under the Expedited Rules still represent approximately one-third of the total SCC caseload.
When the SCC emergency arbitrator rules entered into force in 2010, they were a novelty in international arbitration. Since then, other institutions have introduced their own emergency arbitrator rules. In this respect, it should be noted that the SCC emergency arbitrator rules, in contrast to similar rules, have a retrospective effect and are applicable to all arbitration agreements referring to the SCC rules (i.e., even those agreements entered into prior to the rules' entry into force in 2010). The SCC emergency arbitrator rules provide that an emergency arbitrator shall, if possible, be appointed by the SCC within 24 hours from an application, and that a decision on the security measure sought shall be given within five days from the date when the application was referred to the emergency arbitrator. For a decision to remain valid, arbitral proceedings must be commenced within 30 days from when the decision was made.
The SCC received four applications for appointment of an emergency arbitrator in 2018, compared to three in 2017. Arbitrators were appointed within 24 hours in all three cases, and the average time for rendering an emergency decision was five days from referral.
Revisions to the Swedish Arbitration Act
On 21 November 2018, revisions to the Act were adopted. The purpose of the revisions was to modernise and increase the effectiveness of the Act. The revisions entered into force on 1 March 2019 and are applicable to procedures initiated after that date.3 There were several revisions to the Act, with arguably the most significant being the following:
- the inclusion of certain limitations with respect to parallel proceedings regarding the jurisdiction of the arbitrators;
- the inclusion of provisions regarding choice of law: the arbitrators are now explicitly authorised to decide upon the applicable law in the absence of the parties' agreement in this respect;4
- the inclusion of provisions regarding leave to appeal concerning the Supreme Court: previously, the Swedish courts of appeal could only grant leave to appeal regarding the case as a whole. There were no possibilities of limiting such permission to specific issues. The amendments impose certain requirements on leave to appeal, which allow for limited adjudication on a certain question (or questions);5
- the inclusion of supplementary provisions regarding challenging an arbitral award: if a challenge of an award is based on arbitrators exceeding their mandate, it must now be evidenced that the excess of mandate has probably influenced the outcome of the case. This amendment corresponds to an already existing challenge ground in the Act regarding irregularities in the course of the proceedings.6 Moreover, the time limit for an action against an arbitral award is now reduced from three to two months; and
- the inclusion of provisions regarding the taking of evidence in English in a court of appeal: it is now explicitly prescribed in the Act that oral evidence in English may be presented and assessed without a Swedish interpretation.7
It should be noted that the general perception about the Act is that it has been effective: hence, rather than replacing the entire Act, the adopted revisions are merely an attempt to address certain issues identified about the Act. The overall objective is to make the Act even more attractive to both domestic and international parties and arbitrators.
Svea Court of Appeal initiative
On a more informal level, the Svea Court of Appeal, which deals with most of the challenge proceedings in Sweden, has invited the Swedish arbitration community to discussions regarding its handling of arbitration-related cases and issues. These discussions have resulted in an internal programme established by the Svea Court of Appeal aimed at increasing how efficient and foreseeable such proceedings are.
The Court's initiative is indirectly supported by several cases from 2010 onward in which the Supreme Court confirmed that Sweden is an arbitration-friendly jurisdiction where international best practice is considered by the courts. For example, in Nilsson,8 where the impartiality of the arbitrators was considered, the Supreme Court was explicitly influenced by the IBA Guidelines on Conflicts of Interest in International Arbitration when giving its judgment.
Swedish arbitration laws and procedures available in English
Nowadays, Sweden's arbitration laws and procedures are to a large extent accessible by foreign parties and arbitrators. There are several monographs on international arbitration in Sweden,9 as well as guidelines and commentaries on the Act and the SCC Rules,10 which are available in English.
In 2012, the SCC launched the Swedish Arbitration Portal, which provides free access to English translations of Swedish court decisions on arbitration issues.11 The Portal contains decisions from all instances of the commercial Swedish court system on issues relating to both international and domestic arbitral proceedings. The project's mission is to increase transparency in arbitration by making Swedish case law more accessible to the international community.
In addition, Young Arbitrators Sweden has launched an initiative, supported by the Swedish Arbitration Association and the SCC, intended to make Swedish substantive law more accessible and known to foreign parties and arbitrators. The purpose is simply to assure foreigners that Swedish substantive law on commercial issues is very straightforward and contains no peculiarities. The initiative has resulted in translations into English of Swedish substantive law in several areas, and more will follow.
ii Arbitration developments in local courts
The primary task of Swedish courts in this respect is to support arbitral proceedings conducted in Sweden. The Supreme Court's confirmation of Sweden as an arbitration-friendly jurisdiction is very important for this notion.
The competence of the Swedish courts to handle arbitration-related issues depends on the matter at hand. To simplify, issues that arise prior to the commencement of arbitral proceedings and during such proceedings are primarily handled by the competent district court. Such issues include, for example, the appointment of an arbitrator (in cases where a party has failed to appoint its arbitrator), the discharge of an arbitrator, the taking of oral evidence under oath (subject to leave from the arbitral tribunal), document production and security measures. Moreover, the district court is competent to try the jurisdiction of the arbitrators at the request of a party prior to the commencement of arbitral proceedings. Once the arbitral proceedings have commenced, only the court of appeal is competent to try the jurisdiction of the arbitrators, however, with certain limitations following the revision of the Act.
Issues that arise subsequent to arbitral proceedings are primarily handled by the courts of appeal; as previously mentioned, the Svea Court of Appeal in Stockholm handles most matters. Such issues include, for example, challenge proceedings for setting aside arbitral awards, and the recognition and enforcement of foreign arbitral awards.
Over the past couple of years, a number of arbitral awards have been challenged in Swedish courts. Only a very few of the challenges were successful. This again goes to show that Sweden is indeed an arbitration-friendly jurisdiction, where the starting point is that arbitral awards are to be upheld by the courts. Only in very specific and extraordinary circumstances may arbitral awards be annulled.
iii Investor–state disputes
As previously mentioned, the SCC is the second-largest forum in the world after ICSID for investor–state disputes. In this respect, it should be noted that the SCC is one of the optional forums for disputes under the Energy Charter Treaty (ECT).12
Republic of Poland v. PL Holdings Sárl
In 1987, Poland entered into bilateral investment treaties (BITs) with Luxemburg and Belgium, which entered into force on 2 August 1991. The BITs contained a clause regarding dispute resolution and gave investors from a Member State the right request arbitration against another Member State according to three prescribed options including, inter alia, the SCC Rules.
PL Holdings Sárl is a company registered in Luxemburg. On 26 November 2014, PL Holdings requested arbitration against the Republic of Poland. The background was that the company had acquired shares in two Polish banks. The company alleged that Poland had breached its obligations according to the BIT with Luxemburg by expropriating PT Holdings' assets in Poland. Further, PT Holding claimed that the Polish supervisory authority had, in violation of the BIT, decided to revoke PL Holdings' voting right for its shares, and forced the liquidation of shares. As a result, PL Holdings claimed damages from Poland.
On 28 June 2017, the arbitrators rendered a separate award in which the arbitrators concluded that Poland had violated its obligations according to the BIT by expropriating PL Holdings' shares, and that PT Holdings was consequently entitled to damages. In the final award rendered on 28 September 2017, Poland was obligated to pay damages of approximately 654 million zlotys with interest and compensation for costs.
In 2017, Poland initiated legal actions against PT Holdings regarding the awards, and the cases were consolidated into joint proceedings. Poland claimed that the awards should be declared invalid and, inter alia, invoked issues of public policy (in light of the Achmea judgment). The Svea Court of Appeal concluded that the awards were not invalid. Moreover, the Court concluded that the dispute could in fact be tried by arbitrators, and that neither the arbitral awards, nor the manner in which the awards arose, were incompatible with Swedish public policy. The Court noted that the assessment of whether a certain issue can be tried by arbitrators shall relate to the disputed issues in the arbitral proceedings. In the case under discussion, the disputed question was whether Poland had violated the BIT and whether Poland was obligated to pay damages for such violation and, if so, to what extent. The Svea Court of Appeal held that these questions could in fact be tried by arbitrators.
The Court further found that the circumstances invoked by Poland could not imply the contents of the arbitral awards to be contrary to fundamental EU law. The Court analysed other relevant cases, such as Achmea and Mostaza Claro, and subsequently stated that these cases were irrelevant in relation to the case at hand. Further, the Court found that the awards could not be declared invalid or set aside on the basis that they were not covered by a valid arbitral agreement, since the objection in this respect was raised too late.
However, the Court concluded that a minor part of the final award would be set aside, since the arbitrators made an amendment to the separate award too late. Hence, the arbitrators exceeded their mandate in this regard.
Concerning the other grounds for challenge invoked by Poland, the Court concluded that there was an irregularity during the proceedings per se, as the arbitrators rendered a separate award without any preceding communication with the parties. According to the Court, however, this failure does not imply that the separate award should be set aside due to the fact that Poland had not evidenced that this failure probably influenced the outcome.
Consequently, the arbitral awards were not declared invalid nor set aside as far as the awarded damages of approximately 654 million zlotys, although part of what was awarded in interest was set aside.
The Court granted leave to appeal the judgment, which it seldom does. Hence, the case will now be tried in the Supreme Court.
Kingdom of Spain v. Novenergia II
The pending invalidity and set aside proceedings between Spain and Novenergia at the Svea Court of Appeal is the first ECT award to be challenged following the Achmea judgment.13 The Court has ordered a suspension of the recognition and enforcement of the arbitral award. Spain recently requested that the Court submit questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling. It suggested that the following questions be submitted to the CJEU:
- Is Article 26 ECT to be interpreted as a Member State connected to the ECT having consented to approve arbitral proceedings with an investor's investment in that Member State regarding an alleged breach of an obligation of the Member State according to Part III of the ECT?
- If the answer to the first question is affirmative, can Article 26 ECT preclude arbitral proceedings?
- If the answer to the second question is negative, is an arbitral award contradictory to EU law on public order if the award addresses questions regarding actions qualified as state aid according to Article 108 of the Treaty on the Functioning of the European Union (TFEU) or is contradictory to a decision by the European Commission according to 108(3) TFEU, or both?
The Svea Court of Appeal rejected the request by merely stating that currently it is not motivated to submit questions to the CJEU for a preliminary ruling.
III OUTLOOK AND CONCLUSIONS
Sweden continues to attract a large number of international arbitrations, and hosts a very active arbitration community. Any measures aimed at strengthening the position of Sweden on the international arbitration market are very welcome and supported by the community. The fact that the new SCC Rules and the revisions to the Act have taken the thoughts and ideas of foreign and Swedish practitioners into consideration is very positive. Swedish arbitration is now well equipped to meet the demands of its users and competition from other jurisdictions.
1 Pontus Ewerlöf and Martin Rifall are partners at Hannes Snellman Attorneys Ltd.
2 The revisions to the Act entered into force on 1 March 2019 (see further below).
3 Govt. Bill (Prop. 2017/18:257) pages 14 and 67
4 Govt. Bill (Prop. 2017/18:257), pages 37 to 41.
5 Id., pages 61 to 62.
6 Id., page 47.
7 Id., page 57.
8 Swedish Supreme Court, NJA 2010 p. 317.
9 For example, Hobér, International Commercial Arbitration in Sweden, Oxford University Press, 2011; Swedish Arbitration Association (Herre, ed.), Arbitration in Sweden, Jure Law Books, 2011; and Heuman, Arbitration Law of Sweden: Practice and Procedure, Juris Publishing, 2003.
10 Franke et al. (ed), International Arbitration in Sweden, A Practitioner's Guide, Wolters Kluwer, 2013; and Madsen, Commercial Arbitration in Sweden, Oxford University Press, 2006.
12 The other forums for ECT cases are the ICSID and ad hoc proceedings under the UNCITRAL Rules.
13 Subsequent to initiation of the Spain v. Novenergia case, Spain has challenged yet another arbitral award under the ECT in the Svea Court of Appeal. There are several other pending arbitrations and rendered awards under the ECT between parties from two EU Member States where the outcome of the Spain v. Novenergia case will be of utmost importance.