Kompetenz-Kompetenz in Swedish Arbitration Law is being recast, how should it be done?
Av advokaten FINN MADSEN1
This article analyses the application in Swedish arbitration law of the doctrine of assertion in connection with jurisdictional decisions by arbitral tribunals and courts in Sweden, considers the doctrine of connection which is applied in parallel with the doctrine of assertion and touches upon the Governmental Inquiry overseeing the Swedish Arbitration Act. In addition, it considers the suggestion to codify the doctrine of assertion in the Arbitration
Act, explains why this, in the author’s opinion, would not be purposeful and why Sweden ought instead to adopt the principles for making jurisdictional decisions which are contained within the UNCITRAL Rules of Arbitration, the Model Law and the New York Convention.
In contrast to its Scandinavian neighbours Denmark and Norway, Sweden is not recognized as a Model Law 2 country. Nevertheless, the main principles underlying the Model Law are also reflected in the Swedish Arbitration Act (the “Arbitration Act”) which came into effect in 1999. As a consequence thereof, the doctrine of Kompetenz
Kompetenz has been enshrined in the Arbitration Act. Thus, section 2, first paragraph, first sentence of the Arbitration Act provides that the arbitrators may rule on their own jurisdiction to decide the dispute. As in other developed arbitration jurisdictions, this means that the arbitral tribunal by operation of law is entrusted with the authority to rule on the existence, validity and scope of the arbitration agreement and thereby to essentially rule on its own jurisdiction to decide the issues in dispute.
The arbitrators’ Kompetenz-Kompetenz under Swedish law is not limited merely to determining the validity or scope of the arbitration agreement and its application to the instant dispute. The arbitrators also possess authority to recognise or refuse to recognise their jurisdiction on grounds other than those related to the arbitration agree-
1 This article has been developed from an earlier contribution by the author, see SvJT 2013 s. 730, Påståendedoktrin eller anknytningsdoktrin, efter vilka principer ska en domstol eller skiljenämnd ta ställning till verkan av en skiljeklausul i ljuset av nyare rättspraxis? (Eng: The Doctrine of Assertion or the Doctrine of Connection; How is an Arbitration Tribunal or a Court of Law to Determine Jurisdiction in Light of Recent Case Law?).
2 The UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”).