Låt den rätte komma in - En komparativ studie av australisk och svensk rätt avseende tredje mäns möjlighet att träda in i skiljeförfarande

Sammanfattning: International commercial arbitrations are increasing by the numbers in the global economy. The arbitrations are often set on neutral ground in a neutral jurisdiction. Arbitrations are often held as one of the best methods of dispute resolution as they are effective, predictable and the parties can tailor the proceedings to their liking. This is especially advantageous when the legal relationship between parties and other actors are complex. The global economy is growing and therefore more and more commercial agreements are involving multiple parties. More actors may have an interest in participating in an arbitration that they are not a contracting party of. But as a rule of thumb there must be a binding arbitration agreement for the actor to participate in the arbitration. This thesis examines how true this rule is and if there are any circumstances that can grant a non-signatory entry as a party to an arbitration. Australia, who historically has not been seen as a prominent country for arbitration, has recently got a precedent, Rinehart v Hancock, that has expanded on the possibilities of which a non-signatory can grant access to an arbitration as a party. Therefore, it is of interest to examine the rules of arbitration in Australia and compare them to Swedish regulation to see if Sweden has something to learn from the Australian rules. Regarding possibilities for third parties to enter arbitration the research has shown that there are mainly four possible ways of entry; the third party is within the subjective scope of the arbitration agreement; consolidation; necessary joinder of parties; the parties have referred to arbitrational insti-tutional rules that give access to third party joinder. Swedish and Australian have a lot of similarities regarding third party joinder, but some differences in the details of the regulations. The big difference lies with the subjective scope of the arbitration agreement where Australia, through Rinehart v Hancock, has expanded the scope to contain actors who may have the same claims or defences as an original party to the arbitration agreement. But the possibility of third party joinder comes with its set of problems. Problems regarding the compliance of the fundamental principles of arbitration, such as the principle of equality and the principle of party autonomy, and problems relating to more practical questions such as confidentiality, enforcement of arbitral awards and distribution of costs of the arbitration. The compliance with the fundamental right to a fair and public hearing can also be questioned if third parties are given the possibility to enter arbitration to the extent that this thesis suggests. To give a more comprehensive comparison between Sweden and Australia it has been necessary to examine how the two countries solve the problems that arise from third party joinder. Even in this regard Sweden and Australia have a lot of similarities. For example, regarding the enforcement of arbitral awards, where Sweden and Australia have adopted the articles of the New York-convention. But some of the solutions are very different to each other. For example, regarding confidentiality Australia has taken legislative measures to ensure confidentiality, whiles Sweden has taken no such measures. When answering the question regarding if some of the Australian rules can act as model for Swedish law it has been found that very few of the rules are suitable for the Swedish legal system. However, the Australian rules regarding confidentiality can beneficially be implemented into the Swedish legal system. The Australian arbitral rules have prioritized efficiency and costs whiles the Swedish rules have prioritized party autonomy and predictability. If the Australian rules would be implemented into the Swedish legal system, there is a risk that Sweden would not keep its reputation as a prominent country for arbitration.