Challenge of arbitrators under the Swedish Arbitration Act — procedure and reappointment
Av advokat Rasmus Lüning*
A number of practically important issues regarding the challenge and reappointment of arbitrators remain uncertain under Swedish arbitration law. These issues include (i) whether the tribunal should try an early challenge against a party-appointed arbitrator before or after a chairman has been appointed; (ii) whether the appointing party has a right to accept an early challenge, withdraw its choice and appoint another arbitrator; and (iii) whether the parties are free to agree on the procedure for reappointment after a challenge based on pre-existing circumstances has been made. These issues all have implications for arbitrators, parties and counsel. This article discusses these issues from a practical perspective and seeks to suggest possible solutions. The issues discussed are also related to the ongoing revision of the SAA.
This article examines three practically important, but non-regulated, issues regarding the challenge and reappointment of party-appointed arbitrators in ad-hoc arbitration under the Swedish Arbitration Act (SFS 1999:116, the “SAA”), namely:
i. What is the applicable procedure for the party-appointed arbitrators to follow when trying a challenge of an arbitrator that is leveled by the opposite party before the chairperson has been appointed?
ii. Does the appointing party immediately lose its right to nominate its own arbitrator upon a challenge based on circumstances that existed at the time of appointment? And is the appointing power immediately transferred to the district court (cf. § 16 of the SAA)? Or does the appointing party have a right to withdraw its first choice and appoint another arbitrator?
iii. Are the parties free to agree on how to, and who, shall appoint a replacement? Is the challenging party bound by consent given to the other party to appoint its new arbitrator? Is such agreement between the parties binding on the court?
As can be inferred from the above, the issues discussed in this article are based on the assumption that the tribunal shall consist of three arbitrators, two party-appointed arbitrators, and a third (chairperson) who is appointed by the two party-appointed arbitrators jointly. That is also the order envisaged in the SAA, and its rules are modeled after this assumption.
The issues discussed in this article are practically important not least because they relate to fundamental principles of arbitration, but also because they appear in practice and cause uncertainty among parties and arbitrators alike. The ongoing revision of the SAA described in section 0 below, including the Government’s recent proposal referred to the Council on Legislation (Sw. Lagrådet), also includes suggested amendments to the rules on replacement of arbitrators in the SAA, which further motivates a review of the issues discussed.
It is argued in this article that under most circumstances, the most prudent course of action for the party-appointed arbitrators is to try the challenge between the two of them, before appointing a chairperson. However, as is described below, situations can also be foreseen where it is more appropriate for the full tribunal to try the challenge after the appointment of the chairperson and the constitution of the tribunal. Consequently, it has to be considered to fall within the discretion of the arbitrators to decide on the procedure for trying an early challenge.
Further, it is argued that the appointing party cannot be considered to have a right under the SAA to withdraw its original choice and make a new appointment. On the contrary, it must be considered to follow from the SAA that the appointing party immediately loses its right to choose its own arbitrator upon a challenge based on circumstances that arose before the appointment. However, it is also argued that although this is currently the state of the law, a more appropriate rule would be that the appointing party has the option to agree with the challenge. That would bring the procedure into line with the UNCITRAL Model Law (the “Model Law”) and that of most other developed national arbitration laws.
Lastly, it is submitted that, irrespective of the procedure set out in §§ 14 and 16 of the SAA, the parties are free to agree on the procedure to replace an arbitrator. Such agreement may be reached also during the arbitration. The parties can thus agree on the procedure rather than wait for the district court to appoint a new arbitrator. If such an agreement is reached, it is argued that it becomes binding on the challenging party. If the challenging party refers the challenge to the district court in spite of such an agreement, it is submitted that the agreement shall also be binding on the court. Although it would have been preferable to introduce an explicit regulation in the SAA that allowed the parties to agree that the appointing party may revoke its choice and make a new appointment, it is submitted that this is already the state of the law.
2 Legal framework
2.1 The SAA
The basic requirement of independence and impartiality is set out in § 8 of the SAA. The SAA describes a number of circumstances where an arbitrator cannot be considered independent and impartial. The list is not intended to be exclusive, but should rather be seen as a list of examples. Other circumstances may also constitute conflicts of interest in the meaning of the SAA, and the issue has to be tried on a case-by-case basis. The test is an objective test that considers the issue in the eyes of a third party. That means it is not to be understood as a risk assessment of whether a conflict of interest would in fact be likely to affect the challenged arbitrator.
As seen above, the SAA does not provide specific rules on the issue of conflicts of interest and it does not provide much guidance for the assessment.
In § 10 of the SAA, it is stipulated that a challenge of an arbitrator based on a circumstance set forth in § 8 shall be made within 15 days, counting from the date when the party became aware both of the appointment of the arbitrator and of the existence of the circumstance in question. Further, § 14 of the SAA states that a party who has notified the opposing party of his choice of arbitrator may not revoke the appointment without the consent of the other party.
The applicable procedure for replacing an arbitrator is set out in § 16 of the SAA. Under § 16, the form and method of appointment depend on whether the circumstance due to which the arbitrator cannot fulfill his/her duties arose before or after the appointment. If it arose before the appointment, the district court shall, upon a party’s request, appoint a new arbitrator, whereas if it arose after the appointment, the party who originally was required to make the appointment shall appoint a new arbitrator. This procedure is thus an important deviation from what is stipulated in the Model Law (see below).
On February 6, 2014, a committee was appointed by the legislature to review the current SAA. The committee published the Government Official Report SOU 2015:37 Översyn av lagen om skiljeförfarande, in April 2015. After a round of consultations, a Government proposal was referred to the Council on Legislation on March 1, 2018. The council left limited comments on the proposal on April 17, 2018 and the Government is expected to present a similar proposal to parliament.
The scope of the ongoing review includes possible amendments to the current act, but not a proposal for a new law. The purpose of the review is to ensure that arbitration in Sweden remains a modern, attractive and efficient dispute resolution method for Swedish and international parties alike. Consequently, and as pointed out by the Council on Legislation, one of the starting points for the proposal is that the law should be modern and easily accessible to foreign users. That way, Sweden will maintain and develop its advanced position in international dispute resolution.
Parts of the proposal affect the issues discussed in this article. The most relevant aspect of the proposal is that an appointing party would be given increased influence over the procedure for replacing an arbitrator. This would be achieved through an increased influence for the appointing party in the district court. However, the power to replace an arbitrator that is removed due to a pre-existing circumstance is not given to the appointing party entirely. The district court would continue to be the appointing authority whenever an arbitrator is challenged due to pre-existing circumstances. Despite an acknowledgement by the legislature that the Swedish regulation deviates in this respect from that in the Nordics, the Model Law and the SCC and ICC rules, which all give the appointing party greater influence over the replacement, it was not considered an alternative to allow the appointing party to freely choose its replacement. According to the legislature, such an order would open the door to obstruction, and would remove the incentive for parties to make their first choice with care.
According to the proposal, the SAA should stipulate that when an arbitrator cannot complete the assignment due to reasons that were already present at the time of his/her appointment, the district court shall appoint the new arbitrator proposed by the appointing party, unless special circumstances apply. In doing so, the district court shall consider such factors as whether the replacement of the arbitrator is due to obstruction or if the appointment was not made with due care. The court shall lend weight to whether the appointing party knew or should have known the circumstances that constitute grounds for the challenge, and consider if sufficient controls and background checks were made before the appointment.
The point of departure for this article will be the current state of the law, and the views and standpoints expressed will be based on the current SAA. However, whenever it is relevant, reference will be made to these proposed changes. The standpoints expressed in this article will be discussed and related to the described proposals in the ongoing revision.
2.3 UNCITRAL Model Law
Under the Model Law, a party can challenge an arbitrator, according to article 13, within 15 days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance that may constitute grounds for challenge. There is no provision in the Model Law stating that a party may not revoke its appointment corresponding to that in § 14 of the SAA.
Under the Model Law, the parties may agree on a challenge. If agreement cannot be reached or the arbitrator does not resign, the challenge is tried by “the arbitral tribunal.” Under article 15 of the Model Law, the procedure that applied for the appointment of the removed arbitrator applies also for his replacement, irrespective of the time and/or reason for removal.
3 Challenge of arbitrators – procedure
As mentioned above, a party can challenge an arbitrator within 15 days of its becoming aware of the appointment and the reason for challenge (§ 10 of the SAA). According to the same provision, “the tribunal” tries the challenge of an arbitrator. That includes the challenged arbitrator, who thus participates in the decision on his or her own impartiality (this is also the case in arbitrations with a tribunal that consists of a sole arbitrator). The necessary procedural safeguards in this respect are considered to be provided by the fact that if the tribunal dismisses the challenge, the challenging party can appeal to the district court. The tribunal’s procedure when deciding on the challenge follows the rules in § 30 of the SAA, i.e., the ordinary voting rules applicable for the tribunal.
The SAA does not specify, however, whether “the tribunal” refers to the tribunal as fully constituted or, in case a challenge is leveled immediately after the appointment of the second party-appointed arbitrator, to the two party-appointed arbitrators alone.
The starting point with respect to procedural issues is party autonomy. The parties decide on the procedure to be applied by the arbitrators. That follows from § 21 of the SAA. Other than the basic principle set out in § 21, there are no specific rules on the arbitral procedure set out in the SAA.
The two options that are available to the tribunal in this situation are:
i. to first appoint a chairperson and then decide on the challenge once the tribunal is complete and fully constituted, or
ii. to decide on the challenge immediately between the two party-appointed arbitrators before appointing a chairperson.
The arguments in favor of (i) are the following: Technically, the tribunal is not yet constituted before the chairperson has been appointed. More importantly, however, there is no deciding vote without the chairperson (cf. § 30 of the SAA). If the two party-appointed arbitrators come to different conclusions, the votes are tied and neither is deciding over the other. In some instances, perhaps, it can even be foreseen that the arbitrators would have – or at least seem to have – different inclinations from the outset, and it is likely that they would come to different conclusions regarding the challenge. In the interest of deciding the matter in a speedy, practical and impartial manner (cf. § 21 SAA), the party-appointed arbitrators may then have to proceed with the appointment of a chairperson. It could be argued that it is their duty to ensure that they reach a speedy conclusion of such an important preliminary matter in order for the arbitration to move forward. Thus, in such cases, the most prudent course of action may be to appoint a chairperson and have the issue decided by a full tribunal.
However, a strong argument can also be made for (ii), i.e. deciding on the challenge before appointing a chairperson. This is because the fully constituted tribunal may come to the conclusion that the challenge should be granted. In that case, a biased arbitrator would have appointed the chairperson (at least in part). The challenging party may then have good reason to question that appointment too, and go on to challenge the chairperson.
A renewed challenge proceeding aimed at the chairperson would be an unfavorable outcome for everyone involved. By appointing a chairperson before trying the challenge of the party-appointed arbitrator, the tribunal risks prolonged challenge proceedings. Substantial time and costs could be spent on procedural issues without taking the substance of the dispute closer to a conclusion.
Therefore, in order to decide the matter in a speedy, practical and impartial manner, it is submitted that the preferred course of action for a tribunal should be to, as far as possible, try the challenge of the party-appointed arbitrator before appointing a chairperson.
The view proposed above requires that the arbitrators are considered to have the power to make that decision before appointing a chairperson. It is submitted that they do, which is supported by the rule set out in the first sentence of § 30 of the SAA. It is thus envisaged in the SAA that the tribunal may, under certain circumstances, need the discretion to decide on its procedure and to decide on issues in a truncated tribunal.
As noted above, however, other situations can be foreseen where the better choice would be to appoint a chairperson before deciding on the challenge. Therefore, it is also submitted that the tribunal shall have the discretion to decide on the most efficient procedure for deciding an early challenge, and that decision will have to be made by the arbitrators on a case-by-case basis.
In terms of the practical handling of an early challenge, an early discussion and preliminary assessment between the two party–appointed arbitrators is probably useful and can provide a quick indication on how best to proceed.
From a party or counsel perspective, the discussion above raises other important and closely related questions. As set out under (ii) above, it is not clear whether the appointing party immediately loses its right to nominate its own arbitrator upon such challenge (the appointing power being transferred to the district court, cf. § 16 of the SAA), or if the appointing party has a right to withdraw its first choice and appoint another arbitrator. If the latter applies, the question arises, when does the appointing party have to “accept” the challenge and communicate its intent to withdraw its original choice? How soon will it have to make its (new) choice (i.e., what time limits apply to the second appointment)?
It is unclear whether a party-appointed arbitrator may be withdrawn and replaced upon a challenge from the opposite party. Chief Justice Lindskog argues that when a party-appointed arbitrator is challenged, the appointing party has a right to withdraw its choice and appoint another arbitrator. Thus, the appointing party does not lose its right to nominate its own arbitrator as long as the challenge is maintained. This argument, it seems, is based on the notion that the challenge by the opposite party can be interpreted as an “offer” to the appointing party to withdraw and replace its arbitrator. Similarly, regarding the timeframe for the replacement, Lindskog refers to § 7 of the Contracts Act (1915:218) and the rules of offer and acceptance under that act. Much like the rules of the Contracts Act, Lindskog argues that the appointing party should be provided “a reasonable time” to make its new choice.
While the legal support for Lindskog’s view is not entirely clear, there are good practical reasons for such an order. Several scenarios can be foreseen where it would make sense for the appointing party to be allowed to revoke its choice and make another appointment.
First, if, for example, the challenge is based on a circumstance that existed before the time of appointment, but the appointing party was not aware of that circumstance, the appointing party might even agree that the arbitrator ought to be removed. The appointing party may also have taken due care in making its choice, and may not reasonably have been expected to know about the circumstance that is the ground for challenge.
Second, the appointing party could disagree with the challenge but prefer to appoint another arbitrator and move on with the arbitration, rather than go through challenge proceedings in court (potentially in parallel with the arbitration proceedings, cf. § 2 SAA).
Since there is no provision in the SAA stating that the appointing party may agree on the challenge, the relevant procedural rules are in § 14, which states that a choice cannot be revoked, and § 16, which states that the district court shall appoint a new arbitrator. An obstructing challenging party may see an opportunity to deprive the appointing party of its right to choose its own arbitrator. The challenging party could simply refer to the provisions of the SAA and wait for the district court procedure. As mentioned, this applies regardless of whether the appointing party was aware of (or could reasonably be expected to be aware of) the relevant pre-existing circumstance. This also allows the challenging party to delay the proceedings if it is in that party’s interest to wait for a district court procedure, rather than allow the appointing party to choose another arbitrator (the challenging party might of course be the respondent, for example).
The above means that the appointing party’s hands are tied if a pre-existing circumstance constitutes the ground for challenge. Lindskog’s view provides the appointing party with the ability to agree with the challenge. That way, the appointing party could maintain its right to choose its own arbitrator by revoking its choice. The appointing party could also avoid the risk that the district court will grant the challenge leveled by the other party and appoint a replacement. Lindskog’s view also provides the only way for the appointing party to speed up the procedure (if, for example, the appointing party is the claimant). In most cases, revoking the first choice and appointing another arbitrator would be much quicker than to go through the challenge procedure in court. This could be a better option for the appointing party, even in cases where the appointing party disagrees with the challenge.
However, Lindskog’s view begs the question of what legal implications an acceptance of the challenge would have. It is questionable, even if Lindskog’s view is accepted, whether the appointing party has a right to revoke its choice and make another appointment. If so, would such a right in any way be enforceable? Would it be possible for the appointing party to declare to the challenging party (and, later, to the court) that the challenge is accepted, and that the district court shall rule that the appointing party has a right to revoke its choice and appoint another arbitrator? Does the district court have the power, and is there a legal basis, to make such a decision when there is no agreement between the parties? The answer to all these questions has to be, “No.”
Lindskog’s argument may be inspired by the regulation in the Model Law. Under that law, a challenge can be accepted, and this is coupled with a right for the appointing party to make another appointment. It probably also corresponds to what applies under the arbitration laws of many other leading arbitration countries. However, the wording of the SAA is quite clear, and it does not (like the Model Law) provide the appointing party with an option to agree to the challenge. The provision in § 14 of the SAA is intended to motivate parties to carefully consider their choice of arbitrator given that there is only one chance, including to make sure that their choice of arbitrator complies with any formal requirements stipulated in the SAA or agreed between the parties. The combination of §§ 14 and 16 of the SAA also serves as a sanction that is intended to prevent parties from trying to obstruct and delay the arbitration by appointing an arbitrator that will clearly not be able to serve as arbitrator, or is known to be biased and will be challenged.
Due to the above, it is difficult to reconcile Lindskog’s view with the clear wording of the SAA. The construction of § 14 proposed by Lindskog would simply deviate too much from the wording of the provision. Such more or less fictitious constructions ought to be avoided unless serious policy concerns motivate it. It would also decrease transparency and predictability, especially for international parties. It is also difficult to ignore the explicit intention of the legislature to motivate parties to carefully consider their choice of arbitrator and therefore only provide parties with one chance. Consequently, it is submitted that the current state of the law is that a party does not have a right to withdraw its choice and maintain its right to appoint another arbitrator upon a challenge from the other party that is based on pre-existing circumstances.
That is not to say, however, that the state of the law should not be as Lindskog argues. The arguments discussed above show that, de lege ferenda, it would be preferable to give the appointing party the option to agree with a challenge and revoke its choice, without losing its right to appoint its arbitrator. In light of the expressed ambition of the legislature to ensure that arbitration remains a time- and cost-efficient dispute resolution method, it would make sense to provide parties with the option to agree to a challenge, withdraw its choice of arbitrator and choose a replacement. It would avoid lengthy court proceedings that increase costs. As suggested by the Swedish Arbitration Association, this should at least be allowed in situations where the appointing party was not aware of the pre-existing circumstance, and should not reasonably have been aware, at the time of the appointment. It would therefore be preferable if the changes to the SAA went further in this regard than what has been suggested in the latest Government proposal.
Lastly, question (iii) above concerns whether the parties are free to ignore the procedure set out in § 16 of the SAA and agree on how to, and who, shall appoint a replacement after a challenge has been leveled by the other party. This in turn raises the question whether the challenging party is bound by its consent given to the other party to appoint a new arbitrator. Lastly, is such agreement between the parties binding on the court, even if the challenging party withdraws its consent and maintains the challenge?
First, the question of whether the parties can agree to deviate from the procedure in § 16 has been discussed in the literature and preparatory works. It has to be considered to follow from § 12 of the SAA, as well as the principle of party autonomy, that the parties dispose of the procedure for replacing a challenged arbitrator. Consequently, they may agree on such procedure also during the proceedings. If the parties agree, they can thus disregard the procedure set out in §§ 14 and 16 and allow the appointing party to make a new appointment rather than wait for the district court’s appointment. This view is also supported by § 14, 2nd paragraph of the SAA.
The more difficult question is whether the appointing party can enforce such an agreement in court if the challenging party withdraws its consent or denies that there is such an agreement. It is submitted that if an agreement has been reached, it becomes binding on the challenging party (provided, of course, that the agreement can be evidenced). The challenging party can thus no longer invoke the procedure set out in the SAA and assert that it remains within the district court’s discretion to appoint a new arbitrator.
It is also submitted that the agreement between the parties becomes binding on the district court. Thus, if an agreement has been reached but the challenging party still turns to the district court and requests that the court appoints a new arbitrator, the district court should dismiss the request. The rationale behind § 16 of the SAA does not alter this view. As mentioned, § 16 of the SAA is intended as a sanction to prevent dilatory tactics. Without it, parties could appoint arbitrators that they know will be challenged. It also creates an incentive for parties to consider the initial appointment carefully. The rationale is questionable, since this is probably a dilatory tactic that is rarely used in practice. It can also be questioned if the rule has any material effect on the parties’ diligence and selection process.
The rationale behind this rule becomes especially weak in cases where the appointing party agrees on the challenge. As mentioned, the appointing party may not have been at fault, and may not even have been aware of the circumstance that is the ground for challenge. In such cases, the appointing party can be willing to appoint a new arbitrator. If an agreement is reached between the parties, there is no need for a sanction against the appointing party and there is no obstruction. On the contrary, the challenging party can now refuse to cooperate, complicate the proceedings by denying the agreement, maintain its challenge, and refer to the procedure in the SAA. This could disrupt the process with parallel proceedings, but it also deprives the other party of its chance to appoint its own arbitrator.
The view proposed above means that once an agreement has been reached between the parties, time and money could be saved. This applies even if the challenging party later withdraws its consent or denies that an agreement has been reached.
Although, as mentioned above, it can be considered to follow from § 12 of the SAA and the principle of party autonomy that the parties dispose of the procedure for replacing an arbitrator also during the proceedings, it would have been preferable to introduce an explicit rule to this effect. That way, there would also have been statutory support for the view proposed above. It would also increase predictability and decrease the risk for obstruction.
The government’s latest proposal is a step in the right direction, but it is not sufficient.
Leaving aside the difficulty for the district court to assess whether due care was taken and whether sufficient controls were performed by the appointing party, the suggested change does not address the current uncertainty in the SAA. Instead, it would have been preferable to introduce an explicit regulation in the SAA to the effect that the parties can agree to allow the appointing party to make a new appointment — and that such agreement becomes binding on both the parties and the court. This would be preferred since it would clarify the state of the law and simplify proceedings, and thus decrease costs. Further, the suggested changes will also be unknown for international parties who will most likely still be taken by surprise by the involvement of national courts in this respect.
6 Conclusions and short discussion de lege ferenda
This article has argued that, upon a challenge against a party-appointed arbitrator that is leveled before a chairperson has been appointed, it is in the discretion of the two party-appointed arbitrators to decide whether the challenge should be tried immediately by the two or after appointment of a chairperson. Under most circumstances foreseen in this article, it is argued that the most prudent course of action for the two party-appointed arbitrators is to try the challenge before appointing a chairperson, thus avoiding the risk that a chairperson is later challenged for having been appointed by a biased arbitrator.
Taking into account the numerous unique situations that can arise, it is difficult to foresee what would be an appropriate all-encompassing procedural rule for the handling of early challenges of a party-appointed arbitrator. It is therefore not desirable that a definitive procedural rule is laid down on this point. It is submitted that the current order is satisfactory in that the arbitrators shall have this discretion, and that the most appropriate procedure for deciding on a challenge will have to be decided by the arbitrators on a case-by-case basis. The arbitrators should take into account such factors as the likelihood of the challenge being successful and the merits of the challenge.
With respect to the rules on withdrawal and reappointment, however, it would be preferable if the SAA was brought into line with the applicable rules in other leading arbitration states and thus in line with the expectations of international parties. The appointing party should be given the option to accept a challenge, withdraw its first choice, and retain its right to appoint its own arbitrator without the involvement of the courts. This is partly because the SAA deviates from the applicable rules under both the Model Law and those of most national arbitration laws of developed arbitration states. It is also an outspoken ambition of the legislature that the SAA shall stay in line with international best practice. In addition, it has been found both within the scope of the ongoing review of the SAA, and in practice, that the type of dilatory tactics that § 14 and § 16 are designed to prevent are very rarely used in practice. On the contrary, the current regulation probably does less to prevent dilatory practice, and more to harm Sweden’s reputation as a straightforward and reliable arbitration venue among international parties.
It is therefore submitted that a change in the SAA to the effect of bringing it into line with what applies under the Model Law (i.e., that the reappointment of the removed arbitrator follows the same procedure applied for his/her appointment), is desirable and should be favored in the ongoing revision of the SAA.
Lastly, it has been argued that, irrespective of the procedure set out in §§ 14 and 16 of the SAA, the parties are free to agree on the procedure to replace an arbitrator. That includes the power to allow the party that made the original appointment to make a new appointment rather than wait for the district court to appoint a new arbitrator. The parties can also reach such agreement during the proceedings. If such an agreement is reached, it has been argued that it becomes binding on the challenging party. If the challenging party later withdraws its consent or denies such an agreement, and the challenge is referred to the district court, it is submitted that such agreement shall also be binding on the court. A case referred to the district court on the basis of § 16 despite such agreement should thus be dismissed by the court. This has been argued to be the current state of the law despite the current lack of regulation in the SAA.
Going forward, it is submitted that an explicit regulation should be introduced in the SAA that allows the parties to agree that the appointing party may revoke its choice and make a new appointment. Such regulation would be in line with the Government’s current proposal to strengthen the appointing party’s right to influence the district court’s appointment, and would clarify the state of the law for both domestic and international parties. It would also provide the parties with a useful tool to increase speed and efficiency, and decrease costs.
* Associate, White & Case Advokat AB. The views and opinions expressed in this article are solely the author’s own, and do not necessarily represent those of White & Case.
 This is what Lindskog argues, see Skiljeförfarande — En kommentar (Zeteo) II-14 §-5.2.
 The procedure set out in the SAA is non-mandatory and subject to party autonomy, cf. § 12 of the SAA and below. Numerous alterations of these rules are also seen in practice. For example, it is not uncommon for the parties in international ad-hoc arbitration to agree on the procedure for the appointment of the chairperson. A common alteration is that the parties jointly, by agreement, appoint the chairperson as well, or that the parties agree on a short-list of chairperson candidates from which the party–appointed arbitrators have to choose. No such alternative solutions are considered in this article.
 See the Government’s proposal (Sw. Lagrådsremiss) En modernisering av lagen om skiljeförfarande dated March 1, 2018, as well as the Swedish Government Official Report SOU 2015:37 Översyn av lagen om skiljeförfarande. The Council on Legislation left its opinion on the proposed changes on April 17, 2018, but made no comments in relation to the matters discussed in this article, see also section 0 below.
 A suggestion to this effect was put forward in the Government Official Report SOU 2015:37 Översyn av lagen om skiljeförfarande, p. 178, but was discarded by the Government in its proposal En modernisering av lagen om skiljeförfarande, p. 31.
 The SAA does not specifically provide for independence, but this is generally considered to be implied by impartiality. See Hobér, International Commercial Arbitration in Sweden 4.62. See also § 21, which states that “the arbitrators shall handle the dispute in an impartial […] manner.” The Council on Legislation’s only comment on the Government’s proposal was that independence should, for the sake of clarity, explicitly be mentioned in § 8 since this is the internationally established expression.
 Cf. JL v. Ericsson, NJA 2007 s. 841.
 Hobér, International Commercial Arbitration in Sweden 4.87 and footnote 64, Lindskog, Skiljeförfarande — En kommentar (Zeteo) II-16§-2.3.
 A summary in English is included in the report.
 See the Government’s proposal (Sw. Lagrådsremiss) En modernisering av lagen om skiljeförfarande, dated March 1, 2018.
 See the Government Official Report SOU 2015:37 Översyn av lagen om skiljeförfarande, p. 61.
 See the Government’s proposal En modernisering av lagen om skiljeförfarande, p. 30.
 See the Government’s proposal En modernisering av lagen om skiljeförfarande, p. 31.
 See the Government’s proposal En modernisering av lagen om skiljeförfarande, p. 31. See also the preparatory works to the current SAA, prop. 1998/99:35 s.. 92 et seq., and section 5 below regarding this argument.
 See the Government’s proposal En modernisering av lagen om skiljeförfarande, p. 30-31. Lindskog has argued that this already applies under the current SAA, and that the district court shall in particular take into account the requests of the appointing party (see Lindskog, Skiljeförfarande — En kommentar (Zeteo) II-16§-5.1 and II-0-5.3.3). The reason for this, according to Lindskog, is that the balance of interest that is achieved by the ordinary appointment procedure is altered in these cases and this should be considered by the district court when it makes the appointment. Lindskog’s argument makes sense in cases where there is no apparent obstruction. Less so in other cases since the rule is intended to serve as a sanction, and therefore the purpose of the regulation is to do just that—distort the balance between the parties and thus pose a threat to the (prospective) obstructing party.
 Lindskog, Skiljeförfarande — En kommentar (Zeteo) II-10§-5.1, Hobér, International Commercial Arbitration in Sweden 4.85.
 It reads: “The arbitrators shall handle the dispute in an impartial, practical, and speedy manner. They shall thereupon act in accordance with the decisions of the parties insofar as there is no impediment to so doing.”
 A third option, of course, which often happens in practice, is that the challenged arbitrator disputes the challenge but does not want to participate if he/she is considered biased, and chooses to resign before the challenge is tried (Cf. the Swedish Government Official Report SOU 2015:37 Översyn av lagen om skiljeförfarande, p. 178). This scenario falls outside the scope of the question discussed here, but raises other procedural issues discussed in section 0.
 § 30 of the SAA states: “Where an arbitrator fails, without valid cause, to participate in the determination of an issue by the arbitral tribunal, such failure will not prevent the other arbitrators from ruling on the matter.”
 Cf. also the SCC Rules that go one step further in article 21 (2). According to that article, the board of the SCC shall decide whether the tribunal shall continue the entire arbitration without the third arbitrator.
 Lindskog, Skiljeförfarande — En kommentar (Zeteo) II-14 §-5.2.
 Cf. the Swedish Arbitration Association’s opinion and proposal in the Government’s proposal En modernisering av lagen om skiljeförfarande, dated March 1, 2018, p. 31.
 As opposed to article 13 of the Model Law according to which the appointing party can agree to the challenge, and will, according to article 15, retain its right to appoint another arbitrator.
 See also section 5 below with references to the Government’s proposal (Sw. Lagrådsremiss) En modernisering av lagen om skiljeförfarande, dated March 1, 2018, p. 30-31.
 Government Official Report SOU 2015:37 Översyn av lagen om skiljeförfarande, p. 31, Prop. 1998/99:35 s. 92 et seq.
 Cf. also § 14 third paragraph, which has been argued to apply where a party appoints an arbitrator that will clearly not be able to serve as arbitrator in the arbitration, thus depriving that party of its opportunity to choose its own arbitrator, Lindskog, Skiljeförfarande — En kommentar (Zeteo) II-14§-4.2. Regarding the rationale behind § 16 as a sanction, see Prop. 1998/99:35 s. 92 et seq. and SOU 2015:37 Översyn av lagen om skiljeförfarande, p. 177.
 See the SAA’s opinion to the Governments proposal En modernisering av lagen om skiljeförfarande, dated March 1, 2018, referenced on page 31 of the proposal. Lindskog has argued that this applies already under the current SAA (Lindskog, Skiljeförfarande — En kommentar (Zeteo) II-16§-4.2.1), but, as mentioned above, there is little support for this view. Further, the Government’s proposal (on p. 31) has to be understood as a rejection of this view by the legislature.
 See Section 0 and 5, as well as the Government’s proposal En modernisering av lagen om skiljeförfarande, dated March 1, 2018, p. 30-31.
 See, for example, the Swedish Government Official Report SOU 2015:37 Översyn av lagen om skiljeförfarande” p. 178, and Lindskog, Skiljeförfarande — En kommentar (Zeteo) II-16 §-3.3.
 It reads, ”A party who, in this manner, has notified the opposing party of his choice of arbitrator may not revoke the appointment without the consent of the other party.”
 See the preparatory works to the current SAA prop. 1998/99:35 s. 92 et seq.
 Parties could probably be assumed to have good reason to make their appointment carefully without this rule. For criticism of this rationale, see also Lindskog, Skiljeförfarande — En kommentar (Zeteo) II-16 §-3.2 note 5 .
 About this, see also section 0 above.
 As suggested in the Government Official Report SOU 2015:37 “Översyn av lagen om skiljeförfarande,” p. 178.
 See prop. 1998/99:35 s. 42 et seq. and the Government’s proposal En modernisering av lagen om skiljeförfarande, dated March 1, 2018, p. 1.
A published version of this content is available
Choose if you want to access the published version or continue reading this preprint.