Högsta domstolens prövning av konkurrensrättsliga skiljedomar - En analys av aktuell praxis

Sammanfattning: The aim of this thesis is to analyse from a European perspective the position of the Swedish Supreme Court on the review of arbitral awards regarding issues of competition law. Arbitration plays a crucial role in the field of international commerce largely due to its ability to expediently present to the parties a final, binding and internationally enforceable award. In the Eco Swiss judgement, however, the European Court of Justice implemented a European ”second look” doctrine when it held that competition law, as an integral part of the legislation of the European Union, is to be considered public policy in the respective member states and shall be seen as grounds for review and potential annulment of arbitral awards. As the scope of review and exact public policy nature of the legislation was not specified a divergent practice has developed in the Union as some courts take a minimalist approach while others perform more thorough reviews. Two cases recently decided by the Swedish Supreme Court provide an opportunity to analyse its position regarding the balance struck between respecting the finality of arbitral awards and the obligation to uphold community law. It was found that while the review as a rule should rely on the arbitral tribunals findings on the evidence and be restricted to their legal reasoning the court may perform an official examination de novo especially if the question has not been considered by the arbitral tribunal. Clarification is desired as to when the court is obligated to request from the Court of Justice a preliminary ruling should there be uncertainty as to established law. With regards to questions of tort and economic liability arising from contractual disputes the issue of public policy does not seem to come into play. The reasoning of the court seems to align well with the Court of Justice case law and in a European context positions the court as more ”maximalistic” than previously assumed.