Singular succession and arbitration agreements remains an elusive issue
Av jur. kand. RASMUS LÜNING1
On April 26, 2016 the Swedish Supreme Court delivered an anticipated judgment in case T 4816-12 “Electrolux” (NJA 2016 s. 288) concerning arbitration agreements and singular succession, but due to a surprising classification of the relevant transfer as a universal succession, the Supreme
Court did not provide the much-needed clarification that was expected. The article thus revisits, in light of the Supreme Court judgment, what the state of the law is concerning the obligation of the remaining party to arbitrate with a transferee that compels arbitration following singular succession. The impact of the Supreme Court’s judgment NJA 2015 s. 1040 (“De enstegstätade fasaderna II”) on this issue is also discussed.
1 Singular succession and arbitration agreements
Much of the Swedish debate on party substitution in arbitration agreements has circulated around the effects of singular succession2 on arbitration agreements. One of the most disputed aspects is to what extent the remaining party (A) is bound to arbitrate with the transferee (C) when a right only has been transferred from A’s original counterparty (B), to (C). The Swedish position on this issue is unregulated in the Swedish Arbitration Act (SAA). Instead, it is defined by a concise statement in the preparatory works of the SAA and the succinct Supreme Court judgment NJA 1997 s. 866 (“Emja”).3 Although the Emja case primarily concerned whether the remaining party (A) could rely on an arbitration agreement against the transferee of a right (C), the Supreme Court also noted, in addition to the case before them, what the binding effect of the arbitration agreement would have been if it had been the transferee (C) that sought to rely on the arbitration agreement. On this point the Supreme Court formulated the “Emja rule”, according to which the re-
1 The author is an associate at Wistrand Advokatbyrå. The article is based on, and is a further development of, the author’s master’s thesis written as part of the LL.M. programme at Uppsala University, see Lüning, Rasmus, Singular succession and arbitration agreements — A study of the remaining party’s duty to arbitrate with a successor in light of the Emja and Electrolux judgments. The thesis can be found at http://www.diva-portal.se/smash/get/diva2:781421/FULLTEXT01.pdf 2 The term ”singular succession” is used to describe the Swedish legal concept where only specifically identified rights and obligations are voluntarily transferred, as opposed to the term ”universal succession” used to describe cases where all rights and obligations are transferred by the operation of law. 3 Although Emja predates the SAA, it retains its relevance since the matter is still unregulated in the SAA and the case was explicitly taken into account in the preparatory works of the SAA.