SWEDEN Trends and Developments Contributed by: Jerker Kjellander, Matilda Kronqvist and Selma Beganovic, Vinge
Arbitration Parties to arbitral proceedings can also agree to con - duct final hearings virtually. That said, during the pan - demic, there were cases where the arbitrator decided to conduct the hearing digitally despite one party objecting. In Sweden, the question debated within this context is whether the right to an “oral hearing” pre - scribed in Section 24 of the Swedish Arbitration Act has been fulfilled when a digital hearing takes place, since it has been argued that a party’s right to an oral hearing has been violated in a virtual final hearing, and that the party has not been given a fair trial in accord - ance with Article 6 of the European Convention on Human Rights (ECHR). In Swedish law, there is no established legal definition of the term “oral hearing”. The focus in the Swedish debate centres on whether the right to an oral hearing is upheld when conducting a digital hearing in cases where a party has requested an oral hearing. Arguments advanced in favour of digital hearings include that these were not a technical possibility and were thus not considered when the Swedish law was enacted. The legislative history in fact lacks guid - ance as to what was meant by oral hearings. How - ever, an openness to technological developments is expressed in the preparatory works, and it is stated that the outermost limits are set not by any legal rules but rather by the available technology. It is also stated that, if the parties cannot agree, the timing and details of a hearing should be determined by the arbitrators. A pragmatic approach is generally adopted in Swe - den in relation to such questions, and there are many examples of courts applying a technology-neutral approach when interpreting various concepts. One argument for those in favour of a stricter interpre - tation of the term “oral hearing” is that digital hearings do not fulfil one of the fundamental purposes of the right to oral hearings, which is to build confidence among parties to arbitration as a model for resolving legal disputes. This argument relies on the assump - tion that there are technical aspects that make vide - oconferencing an inferior alternative to a hearing in person. However, the recent assessment conducted among Swedish general courts found mostly positive views on the use of video hearings and, as mentioned,
legislators have even extended the possibilities for conducting hearings by video and audio transmission. Even if one were to accept the view that virtual hear - ings are inferior to physical hearings, it is not uncom - mon for the parties’ right to oral hearings to be limited in arbitral proceedings when deemed appropriate by the arbitrators. For example, arbitrators may review evidence by video if the parties request a hearing under oath in court; the arbitral tribunal may order the party to submit written statements in advance, which may then be supplemented only by a brief main hearing; and the arbitral tribunal may limit the time available to the party for presentation of the facts and closing arguments. None of these constraints have led to court decisions that the procedure would be contrary to the right to an oral hearing. Moreover, one party’s view of what is needed to ensure a fair trial must be weighed against another interest typically held by the other party, namely that the proceedings should lead to a decision within a reasonable time. Section 21 of the Swedish Arbitration Act provides that the arbitral tribunal must conduct its proceedings impartially, effectively and expeditiously. The need for an expeditious and effective procedure also follows on from Article 6 of the ECHR and is usu - ally highlighted as one of the advantages of arbitra - tion. It is therefore arguable that the objective of the right to a fair trial and to an oral hearing is also served by the possibility of holding the hearing digitally if this is a prerequisite for ensuring that it can be held within a reasonable time, which was often the case during the COVID-19 pandemic. In June 2022, the Svea Court of Appeal delivered a judgment regarding an arbitration award in which the final hearing was held with the counsel and witnesses present through video links. The losing party claimed that the arbitral tribunal had committed a procedural error that was likely to have influenced the outcome of the arbitration by, inter alia, refusing to hold an oral hearing in violation of Section 24 (2) of the Swedish Arbitration Act. Thus, the issues that the Svea Court of Appeal had to examine were whether the proceed - ings should be deemed to have been conducted in an appropriate manner regarding the parties’ right to a fair trial, and whether the losing party had been able to
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