Contributed By Norburg & Scherp Advokatbyrå
The Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the New York Convention) has been in full effect in Sweden since it was ratified without reservations in 1972. The provisions of the Convention have since been incorporated into the Arbitration Act.
The procedure for enforcing an arbitral award differs for Swedish awards and foreign awards. An award made abroad shall be deemed to be a foreign award (see Section 52 of the Arbitration Act), while an award made in Sweden is a Swedish award.
A Swedish award is enforced in Sweden in the same manner as a domestic court judgment under the Swedish Enforcement Code 1981 (Swedish: utsökningsbalken [1981:774]). An application for enforcement is made to the enforcement service (Swedish: Kronofogdemyndigheten) without being preceded by any exequatur procedure. A Swedish arbitral award that is based on an arbitration agreement may be enforced, provided that: (i) the arbitration agreement does not contain any reservation concerning the right of a party to appeal the award or, where there is such a reservation, the time for such action has expired without the action having been presented; and (ii) the award satisfies the rules concerning writing and signature in the Arbitration Act (see Section 15 first paragraph of the Enforcement Code). The defendant shall always be given an opportunity to respond before enforcement takes place (see Section 15 third paragraph of the Enforcement Code).
A foreign award must first be subjected to an exequatur proceeding, the purpose of which is to make sure that there are no hindrances against recognition and enforcement of the award. A foreign award shall not be recognised or enforced in Sweden where the party against whom it is invoked proves: (i) that the signatory of the arbitration agreement was unauthorised or the arbitration agreement is invalid; (ii) that due process has been violated; (iii) that the arbitral tribunal has exceeded its mandate; (iv) that the arbitrators were not properly appointed; or (v) that the award is not binding and enforceable in the country where it was made (see Section 54 of the Arbitration Act). Recognition and enforcement of a foreign award shall also be refused where a court finds that the award includes determination of an issue which, in accordance with Swedish law, may not be decided by arbitrators, or that it would clearly be incompatible with the fundamental principles of the Swedish legal system to recognise and enforce the award (see Section 55 of the Arbitration Act). An application for enforcement shall be lodged with the Svea Court of Appeal in Stockholm. The original award or a certified copy of the award must be appended to the application, and, unless the court decides otherwise, a certified translation into Swedish of the award must be submitted (see Section 56 of the Arbitration Act). The opposing party must be afforded an opportunity to respond to the application before the court rules on the application (see Section 57 of the Arbitration Act). Where the court grants the application, the award shall be enforced as a final judgment of a Swedish court, unless it is appealed and the Supreme Court decides differently (see Section 59 of the Arbitration Act). This means that an application for enforcement is to be made to the enforcement service, as described above.
Swedish courts generally have an arbitration-friendly approach, and the provisions of the New York Convention are only seen as minimum requirements. Therefore, an award may be recognised even though it would not be recognised by courts in another contracting state.
The limited grounds for refusal, the burden of proof of the challenging party and the general pro-enforcement attitude of the courts have resulted in very few cases where enforcement has been refused.