Verkställighet av säkerhetsåtgärder i skiljeförfaranden : reflektioner kring Sverige som attraktivt skiljeförfarandeland i en internationell kontext

Sammanfattning: During an arbitration, a party may need to request the arbitral tribunal to order interim measures to secure a meaningful award. However, the parties may face issues relating to enforceability and hence the effectiveness of the arbitral tribunal’s interim decision. If the arbitral tribunal is seated in Sweden, under the current Swedish Arbitration Act (SAA), a decision on interim measures is not enforceable in the form of an order. This raises the issue whether such a decision could be made enforceable if issued in the form of an arbitral award. The SAA is currently undergoing a revision with the aim to increase the attractiveness of Swedish arbitration, for both Swedish and foreign parties. The Government Commission (Commission) proposed in its report in 2015 that an express legislative provision be introduced specifically empowering an arbitral tribunal to order an interim measure in the form of an order or an award. This would be consistent with relevant Arbitral Rules. A decision in form of an award would potentially be enforceable. The Government decided not to follow the Commission’s proposal in the proposed legislation referred to the Law Council on Legislation. The Commission implied that interim measures may be enforceable in Sweden, if made in the form of an award. Through the use of a legal dogmatic and legal analytical method this thesis concludes that there is an uncertainty as to whether interim measures, in the form of an award, can be enforced in Sweden. Parties can probably give the arbitral tribunal such authority to grant interim measures that are final and binding in character, if this is provided for in their arbitration agreement. For example, parties could vest the arbitral tribunal with such power by referring to arbitration rules that provide for such interim relief, as is provided in SCC and ICC Arbitral Rules. It is also concluded that the enforceability depends on whether the award was rendered by a tribunal sitting in/outside of Sweden. The Swedish Supreme Court has stated that “award” within the meaning of the New York Convention (NYC) should, as a rule, be construed according to the law of the seat of the arbitration. This may allow for enforcement of interim measures in the form of an award. However, due to the general, but not conclusive, view that the NYC does not apply to interim measures, no certain conclusions can be made. Furthermore, it is argued, because of this ambiguity, that Sweden fails to offer parties and arbitrators a modern and effective arbitral regime, which may hamper Sweden’s ambitions in attracting foreign parties to arbitrate in Sweden. Therefore, Sweden should introduce a possibility for the arbitral tribunal to grant enforceable interim measures.