Tvistinvesterares finansiering av skiljetvister: Om kostnadsregleringen i lagen om skiljeförfarande

Sammanfattning: In recent years, international literature and debate has brought attention to the fact that it has become increasingly common for third-party funders to partially or fully finance a party’s arbitration and litigation costs. This essay examines if, and in what manner, Swedish arbitration cost regulations gov-ern the issue of third-party financing of a party to the arbitration. The essay uses a traditional legal method in order to answer the essay’s questions about applicable law. When awarding costs at the end of the arbitral proceedings, the question of how a party has financed its’ arbitration proceedings should not affect the tribunals allocation of costs. The reason for this is that costs are allocated based on the outcome of the case and/or the parties’ conduct during the ar-bitral proceedings. Therefore, the fact that a party has been funded by a third-party funder does not give rise to make an exception from articles 1-6 in Chapter 18 of the Swedish Code of Judicial Procedure. Article 8 in Chapter 18 of the Swedish Code of Judicial Proceedings gives no guidance as to whether a party should be considered to have had legal costs when a third-party funder has paid for these. However, according to case law, a party can only be reimbursed for costs that have been incurred by the party. The obligation to reimburse a third-party funder should be suffi-cient for tribunals to accept that a party has incurred costs. A funded party cannot recover costs directly linked to the costs of the financing it has re-ceived from the third-party funder. The main reason for this is partly that such costs are not recoverable in accordance to article 8 in Chapter 18 of the Swedish Code of Judicial Proceedings, partly because such costs are not reasonably incurred to safeguard the party’s interest. If a funded party loses the arbitral proceedings and is insolvent, there are no explicit provisions that allow an arbitral tribunal to issue a costs order against a third-party funder. However, due to NJA 2014 p. 877, a third-party fun-der could possibly be held responsible for the non-funded party’s costs in a subsequent court proceeding. Responsibility requires that the main purpose of the financing of the funded party was to evade the Swedish Code of Judicial Proceedings’ provisions on the allocation of costs. A non-funded party cannot sue a third-party funder located outside of the EU in front of a state court, if the third-party funder has not undertaken responsibility for the non-funded party’s costs in the funding agreement.