Hammarskiöld
5 Contributions by Hammarskiöld Experts
PRACTICE NOTES
This Practice Note explores how state immunity interacts with arbitration proceedings in Sweden. For an overall primer on state immunity and arbitration, see Practice Note: State immunity and arbitration—general considerations. In addition, for Practice Notes on state immunity across multiple jurisdictions worldwide (including England and Wales), see our ‘State immunity’ subtopic: State immunity and arbitration—overview.
Introduction—State immunity and international arbitration
As a general principle, Swedish courts honour state immunity for sovereign acts but not for commercial conduct. Consequently, agreeing an arbitration clause typically amounts to a waiver of immunity for arbitral and court proceedings connected to a contract. Challenges may nevertheless emerge at the enforcement stage of an arbitral award. The key issue is whether the property targeted by enforcement measures is substantially used for official functions. If so, that property is shielded. If not, state immunity cannot be relied upon, as outlined below. In this
Arbitration
PRACTICE NOTES
This Practice Note addresses the dispute resolution process commonly known as , which is governed by the SCC Rules for Express Dispute Assessment (the Rules).
What is ?
The Stockholm Chamber of Commerce (SCC) Arbitration Institute introduced the SCC Rules for Express Dispute Assessment () in May 2021. Developed to give clients additional options for resolving disputes without turning to traditional procedures, following client and market research showing demand, the process is a new hybrid of arbitration and mediation. As with commercial arbitration and mediation, it is voluntary and confidential. Crucially, confidentiality applies by default and extends to any subsequent arbitration, litigation or other legal proceedings. In contrast to conventional arbitration, the conclusions are not legally binding or enforceable. It also departs from mediation because the usual outcome is an assessment of the merits of the dispute, rather than a mediator’s suggestion for an
Arbitration
PRACTICE NOTES
The Tribunal’s Power to Determine its Own Jurisdiction ( kompetenz-kompetenz )
This Practice Note examines issues of tribunal jurisdiction under Swedish law.
Section 2 of the Swedish Arbitration Act (SAA) states that:
Arbitrators are empowered to decide their own jurisdiction over the dispute.
If they conclude that they have jurisdiction, any party may appeal to the Court of Appeal within 30 days of receiving the decision.
The arbitral proceedings may continue while the court considers the appeal.
Sections 34 and 36 apply to any action challenging an arbitral award that includes a decision on jurisdiction.
In consequence, Swedish law endorses the principle of kompetenz-kompetenz (la compétance de la compétance), meaning arbitrators have authority to rule on their own competence. In doing so, they should also observe the separability doctrine, which the SAA has codified (see: No Jurisdiction below)...
Arbitration
PRACTICE NOTES
Swedish law differentiates between ‘Swedish arbitral awards’ and ‘foreign arbitral awards’.
Domestic awards are enforceable in the same manner as judgments of Swedish courts, and, notably, they proceed without any exequatur requirement.
In contrast, to execute a foreign arbitral award in Sweden, one must first secure exequatur from the Court of Appeal and then apply to the Swedish Enforcement Authority for execution of the award. In practice, the procedure is straightforward and will usually take a few weeks, unless the counterparty raises objections, in which event the process may become considerably lengthier.
This practice note deals solely with the enforcement of foreign arbitral awards and does not consider domestic awards within this context and scope. Before examining the rules governing enforcement of foreign arbitral awards in Sweden, a brief outline concerning invalidity and the setting aside of an arbitral award will be provided for clarity. The
Arbitration
PRACTICE NOTES
Interim remedies from the tribunal
The Swedish Arbitration Act (SAA) applies to all arbitrations seated in Sweden, irrespective of any international nexus (Section 46 SAA). An official translation into English is available through the SCC Arbitration Institute. Under Section 25, paragraph 4 of the SAA, interim relief—described as “provisional and conservatory measures”—can be granted in international arbitration proceedings in Sweden. That provision states that, unless the parties have agreed otherwise, an arbitral tribunal may, at the request of one party, order provisional or conservatory measures. The tribunal may additionally require the requesting party to provide reasonable security for the damages that the opposing party may incur as a result of such an interim measure. These measures are expressly available in international arbitrations seated in Sweden. A comparable rule empowering tribunals to order interim measures is contained in the 2023 arbitration rules of the SCC
Arbitration
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