SWEDEN Trends and Developments Contributed by: Jerker Kjellander, Matilda Kronqvist and Selma Beganovic, Vinge
present their case in a legally secure manner through the means of a virtual hearing. The Svea Court of Appeal stated that Section 24 (2) of the Swedish Arbitration Act provides for an oral hear - ing to be held if a party requests it, provided the par - ties have not agreed otherwise. However, the meaning of the term “oral hearing” is not apparent from the Swedish Arbitration Act. According to the prepara - tory works, Section 24 (2) of the Swedish Arbitration Act has its background in Article 6 of the ECHR. It is also argued that questions concerning when the hearing should be held, and its structure, should be determined by the arbitrators if the parties cannot agree. Furthermore, it is noted that the Swedish Arbi - tration Act – in contrast to Chapter 5, Section 10 of the Swedish Code of Judicial Procedure – does not have any provision stating that the court may decide that a person who is to take part in a hearing can do so by means of audio or video link. Considering the background and the purpose of the provision in Section 24 (2) of the Swedish Arbitration Act, the Svea Court of Appeal stated that there are reasons to understand the provision as being tech - nology-neutral. Therefore, it does not preclude that a person who is to participate does so by audio or video link. In light of the above, the Svea Court of Appeal con - cluded that it must be within the scope of the arbitral tribunal’s mandate to decide whether participants in a hearing can be present through audio or video link. The fact that a party objects to such attendance cannot constitute an obstacle thereto. However, it is noted that the arbitral tribunal in each case should assess whether a procedure with digital elements is appropriate. The assessment should consider that the parties must be allowed to present their case to a nec - essary extent, and that the dispute should be handled impartially, appropriately and quickly. For the arbitral tribunal’s position to constitute a procedural error, it must appear to be unjustifiable in conjunction with an overall assessment. In this particular case, the appellant had requested the hearing be postponed due to COVID-19. The arbitral tribunal rejected the appellant’s request and noted that
the hearing would be conducted as a remote meeting by video link, and that the arbitrators would sit togeth - er in a pre-booked room. However, this did not mean that the appellant had been refused an oral hearing. It was still possible for both parties to appear physically in the room where the arbitral tribunal would be locat - ed during the final hearing. Furthermore, it was noted that no evidence had been adduced which showed that the technical conditions during the hearing had been anything other than acceptable. Both parties had been heard and had been given the opportunity to communicate with each other, with the arbitral tribunal and with the witnesses called for the hearing. The Svea Court of Appeal concluded that the proce - dure had guaranteed the parties’ equal treatment, that both parties had been allowed to fully pursue their case, and that the procedure had not therefore con - flicted with the principle of party autonomy. It is now fair to say that, following this judgment, Swedish law on virtual hearings in arbitration has sta - bilised around a technology-neutral understanding of the statutory right to an oral hearing, with the tribu - nal’s case-management discretion bound by equal treatment, due opportunity to present one’s case, and procedural efficiency. The Supreme Court has not revisited the issue, and there has been no con - trary development to unsettle the Court of Appeal’s approach. In practice, hybrid formats are increasingly common, and digital elements, when managed with appropriate safeguards, do not in themselves jeopard - ise enforceability in Sweden. Mediation Interest in mediation is increasingly driven by longer court timeframes. For cross-border settlements, the Singapore Convention on Mediation is worth monitor - ing, although neither the EU nor its member states have acceded. In practice, under Swedish law, the most dependable routes are to have the settlement declared enforceable by the district court under the Mediation Act (or, in pending court proceedings, to have the court approve and record the settlement as a judgment), or to embody the settlement in an arbitral award (eg, an award on agreed terms/consent award, including where the mediator transitions into an arbi - trator).
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