Originally from The Swedish Arbitration Act of 1999, Five Years On: A Critical Review of Strengths and Weaknesses

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Mr. Sekolec and his co-author Mr. Eliasson have presented an enlightening and comprehensive survey of the common and diverging aspects of the Swedish Arbitration Act of 1999 (“the Swedish Act”) and the UNCITRAL Model Law on International Commercial Arbitration of 1985 (“the Model Law”).

Suffice it to say that the points in common are far more extensive than are the divergences, since in the long and careful drafting process that led up to the adoption of the Swedish Act considerable efforts were made by the Swedish draftsmen to benefit from the modern and pro-arbitration thinking and principles that had gone into the Model Law. 

Still, in certain areas, some notable differences in approach exist. These areas have been identified by Mr. Sekolec and Mr. Eliasson in their presentation. I would like to focus my comments on one of these areas, namely the role of the courts in reviewing whether a dispute is properly subject to arbitral jurisdiction.

Both the Swedish Act and the Model Law recognize the well-established principle of “competence-competence.” Article 2(1) of the Swedish Act stipulates that “The arbitrators may rule on their own jurisdiction to decide the dispute.” And Article 16(1) of the Model Law provides that “The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.”