Challenge of arbitrators under the Swedish Arbitration Act — procedure and reappointment
Av advokaten RASMUS LÜNING1
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
This article examines three practically important, but non-regulated, issues regarding the challenge and reappointment of partyappointed 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?2 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
1Associate, 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. 2 This is what Lindskog argues, see Skiljeförfarande — En kommentar (Zeteo) II-14 §5.2.