Contributed By Norburg & Scherp Advokatbyrå
There are no form requirements for an arbitration agreement to be enforceable under Swedish law. Thus, an arbitration agreement can be entered into in writing or orally, or can be formed by the conduct of the parties. The general principles under Swedish contract law also apply to the formation and interpretation of arbitration agreements.
As regards the substance of the arbitration agreement, three cumulative requirements must be fulfilled according to the Arbitration Act. First, there must be an agreement between the parties to refer the dispute to arbitration. Second, the arbitration agreement must identify a defined legal relationship to be covered by the arbitration agreement. Third, there must be a clear reference to arbitration and not to some other form of dispute resolution.
A dispute is arbitrable under Swedish law only if it can be settled by agreement between the parties. Since parties are generally entitled to settle commercial disputes by way of agreement, arbitrability is seldom an issue in commercial arbitration in Sweden. Examples of issues that are incapable of settlement include those concerning third party interests, rights in rem declaration of bankruptcy, claw-back disputes and taxation. Arbitrability is determined both by Swedish law and by the law governing the arbitration agreement. Unless otherwise agreed, the arbitration agreement is governed by Swedish law if the seat of the arbitration is Sweden.
Swedish courts generally have an arbitration-friendly approach, so tend to uphold arbitration agreements.
Invalidity of the main contract does not automatically affect the jurisdiction of the tribunal under the arbitration agreement. The validity of the arbitration agreement shall be determined independently in accordance with the doctrine of separability that is incorporated in Section 3 of the Arbitration Act.