Two appeal courts recently ruled on two separate cases in which arbitral awards were challenged on the basis that the tribunals had departed from decisions made on issues of merits in procedural orders. Generally, procedural orders are not final and binding and a tribunal is free to amend previously issued procedural orders. However, procedural orders are sometimes used as a tool for making interim decisions on the merits of the case.
The Svea Court of Appeal recently rejected City Säkerhet's motion to set aside an arbitral award. The judgment clarifies whether an arbitrator's application of a legal rule to which neither party referred in the arbitration may constitute grounds to challenge the arbitration award. The principle of jura novit curia (ie, the court knows the law), which is applicable in court proceedings, should also apply in Swedish arbitration unless otherwise agreed by the parties.
The Supreme Court recently allowed for court proceedings despite a valid arbitration agreement between the parties, because the legal grounds invoked by the claimant were outside the scope of the arbitration agreement. The court confirmed the doctrine of assertion and clarified the doctrine of connection.
The Svea Court of Appeal recently rejected the Republic of Kazakhstan's request to declare invalid or set aside the arbitral award in Stati v Kazakhstan. In the award, a group of foreign investors was awarded substantial damages following the state's seizure of certain assets. The judgment indicates that it is possible to declare an arbitral award based on false evidence invalid due to public policy, provided that it is proven that the outcome of the case was influenced.
Sweden's arbitration-friendly approach has led the Swedish courts to deny only rarely an application for the recognition and enforcement of a foreign award. It was therefore noted with interest when the Svea Court of Appeal denied enforcement of a foreign award due to matters of public policy in Finants Collect v Heino Kumpula.
Although arbitral tribunals have wide discretion to decide on the conduct of arbitral proceedings, it has frequently been debated whether a procedural order can reflect an agreement between the parties and, therefore, that the arbitral tribunal cannot amend such an order without exceeding its mandate or otherwise committing a procedural error. Two recent Svea Court of Appeal judgments have clarified these issues.
The Arbitration Institute of the Stockholm Chamber of Commerce (SCC) has prepared a draft of the revised SCC Rules and the revised SCC Expedited Rules. The new rules have been distributed to the arbitration community worldwide and several hearings have been held to discuss them. The rules will address certain recurring issues in international arbitration, including multi-party and multi-contract situations, security for costs and administrative secretaries.