Contributed By Norburg & Scherp Advokatbyrå
Arbitrations in Sweden are adversarial and, therefore, it is for the parties to invoke and present any and all evidence upon which they wish to rely, in whatever form. Evidence may only be refused by the arbitrators in cases where they find that the evidence is manifestly irrelevant to the case, or if refusal is justified having regard to the time at which the evidence is offered (see Section 25 of the Arbitration Act).
Upon the request of one party, arbitrators may order the other party to produce evidence, including documents and objects. The parties are free to agree on the procedure for the production of documents and other evidentiary issues. In the absence of such agreement, the arbitrators may decide these issues at their discretion. In international arbitration seated in Sweden, the arbitrators are often guided by the IBA Rules on the Taking of Evidence in International Arbitration in this regard. The IBA Rules are well known by Swedish counsel and arbitrators, and are relatively similar to the approach in domestic court proceedings.
Production orders issued by arbitrators are not enforceable in Sweden, but in practice many parties follow such orders and other procedural decisions issued by the arbitrators during the arbitration. Under Swedish law, arbitrators cannot administer oaths, and a witness is not obliged by law – as before a court – to appear and give testimony before an arbitration tribunal. However, at the request of a party and with the approval of the arbitral tribunal, district courts are authorised to assist in the taking of evidence in these situations. After obtaining the consent of the arbitrators, a party may submit an application to the court if it wishes to examine a witness or an expert under oath, and also if one party wishes another party or a third party to be ordered to produce a document or an object as evidence (see Section 26 of the Arbitration Act).
A common procedure in international arbitration proceedings seated in Sweden is that the parties submit written witness statements, including expert reports, and that the party invoking the witness statement is obliged to produce the witness at the hearing for cross-examination. Before cross-examination, a limited examination in chief is normally conducted. The arbitral tribunal may also put questions to the witness.
There are no detailed rules of evidence that apply to arbitral proceedings seated in Sweden. Arbitral tribunals seated in Sweden are commonly guided by the IBA Rules on the Taking of Evidence in International Arbitration in this regard. The IBA Rules are familiar to Swedish counsel and arbitrators as the approach to document production in the IBA Rules is similar to the approach in national court proceedings.
The arbitrators are not allowed to administer oaths or truth affirmations, nor are they permitted to impose conditional fines or otherwise use compulsory measures in order to obtain requested evidence (see Section 26 of the Arbitration Act). This means that the arbitrators cannot use compulsory measures to force a party or witness to attend the hearing, or to force a party or a third party to comply with an order to produce documents. However, upon the request of a party an arbitral tribunal may allow the party to apply for a district court’s assistance in such matters.