Comparative Guides

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4. Results: Answers
International Arbitration
The role of the court during an arbitration
Will the court in your jurisdiction stay proceedings and refer parties to arbitration if there is an arbitration agreement?

Answer ... If a party initiates court proceedings despite a valid arbitration agreement, the other party can require the court to dismiss the claimant’s action in court or to stay proceedings. A jurisdictional objection must be raised at the latest when the objecting party should submit its statement of defence in the court proceedings. Consequently, if the defendant does not invoke the arbitration agreement in its statement of defence or submits its statement of defence after the time stipulated by the court, it is considered to have waived or forfeited its right to invoke the arbitration clause. The court will not consider the arbitration clause on its own initiative.

For more information about this answer please contact: Sandra Kaznova from Hammarskiold & Co
Does the court in your jurisdiction have any powers in relation to an arbitration seated in your jurisdiction and/or seated outside your jurisdiction? What are these powers? Under what conditions are these powers exercised?

Answer ... As stated in question 14, the arbitral tribunal may decide on its own jurisdiction, but a party is still permitted to petition a court to decide the question definitively. A decision by the tribunal to dismiss a claim without prejudice owing to lack of jurisdiction may, following a challenge of the final award, be revised by the court of appeal. As explained above, a party may have recourse to the courts if its request for the removal of an arbitrator is denied by the arbitral tribunal. The court can then appoint a new arbitrator at the request of a party.

Further, witnesses cannot be sworn in by the tribunal. However, the tribunal can allow a party to petition the district court to hear a witness under oath.

The district court may also assist in the production of documents or other information that can be transferred in writing. A party must first have the arbitral tribunal’s permission to petition the court. An order by the district court to produce documents is enforceable. The courts have no general right to intervene in arbitral proceedings.

For more information about this answer please contact: Sandra Kaznova from Hammarskiold & Co
Can the parties exclude the court's powers by agreement?

Answer ... The parties may agree not to apply several provisions of the Arbitration Act. For example, the parties may agree that an arbitration institution and not a court shall determine all questions on the challenge and replacement of arbitrators. However, there are a few mandatory provisions, including the provision that arbitrators are prohibited from using means of compulsion such as to swear somebody in (or to impose fines), and the provisions concerning invalid awards and the setting aside of awards. Further, agreements to exclude or limit the parties’ rights to challenge an award are recognised and enforced in Sweden only where:

  • none of the parties is domiciled or has its place of business in Sweden;
  • the parties’ relationship is of a commercial nature; and
  • the agreement is in writing.

For more information about this answer please contact: Sandra Kaznova from Hammarskiold & Co
International Arbitration