Originally from: Between East and West: Essays in Honour of Ulf Franke - Hardcover
Between East and West: Essays in Honour of Ulf Franke - Electronic
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Are Parties Entitled to Agree on the Application of the UNCITRAL Model Law in a Contract Providing for Arbitration in Sweden?
Lars Heuman
I. INTRODUCTION
The Swedish Arbitration Act (SAA) is based on the UNCITRAL
Model Law. Several of the provisions in the SAA are in accordance with
the corresponding articles in the Model Law, but others diverge more or
less from the articles in the Model Law. The differences are sometimes
only linguistic, for example the difference between some of the grounds
for challenging awards. As the Model Law is adopted in many countries
and well-known in the arbitration world, it would be easier for foreign
contracting parties to understand the meaning of a clause providing for
arbitration in Sweden if the Model Law were applied according to the
clause. Could such Model Law clauses be effective?
Under the principle of party autonomy, parties ought to be entitled to
agree on the applicability of the Model Law. To the extent the SAA
contains mandatory provisions, these cannot be derogated from by
agreement. However, generally the Model Law contains rules
corresponding to the mandatory provisions in the SAA. Fundamental
principles of natural justice are reflected in both laws. The principle of
party autonomy does not apply to court procedure, unless the Swedish
Code of Procedure expressly authorises the parties to make procedural
agreements. Even if no such provisions exist in the Code, it is possible that
procedural agreements are accepted if they facilitate the court procedure
or at least do not make adjudication more complicated for judges. For
example, a contract clause placing the burden of proof on a party is
effective under Swedish law despite no support for this in the Code.
Presumably there is no party autonomy in cases where the parties want to
amend the court procedure for setting aside awards or the procedure for
court intervention.
About the Author:
Lars Heuman is a Professor of procedural law at the Stockholm Centre for Commercial Law, Stockholm University. He was a member of the Governmental Arbitration Committee, which prepared the bill for the 1999 Swedish Arbitration Act and is the editor of the arbitration section of Juridisk Tidskrift.
