SWEDEN Trends and Developments Contributed by: Jerker Kjellander, Matilda Kronqvist and Selma Beganovic, Vinge
Enforcement via the Swedish Enforcement Authority remains a very potent and cost-efficient way of hav - ing foreign as well as domestic court judgments and arbitral awards executed, although the authority on occasion is overly bureaucratic.
also stated that, if the parties cannot agree, the timing and details of a hearing should be determined by the arbitrators. In Sweden, a pragmatic approach is gen - erally adopted 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 evaluation 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 ones, it is not uncommon for the parties’ right to oral hearings to be limited in arbitral proceedings when deemed appropriate by the arbitrators. For example, arbitrators may review evi - dence 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 clos - ing 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 shall conduct its proceedings impartially, effectively and expeditiously. The need for an expeditious and effective procedure also follows from Article 6 of the ECHR and is usually highlighted as one of the advantages of arbitration. It is therefore arguable that the objective of the right to a fair trial and to an oral hearing is also served by
Virtual Hearings General courts
Sweden adopted the possibility to participate in a hearing via video link during 2008, and this has since been deemed to be legally equivalent to being present in person. While still relatively uncommon in major civil litigation, hybrid hearings have become increasingly common. The use of digital tools at any stage of the proceedings will in any event not pose an issue when it comes to the enforceability of judgments in Sweden per se. Arbitration Parties to arbitral proceedings can also agree to con - duct final hearings virtually. During the COVID-19 pan - demic, there were cases where the arbitrator decided to conduct the hearing digitally, despite the objec - tion of a party. In Sweden, the question debated in this context is whether the right to an “oral hearing” prescribed in Section 24 of the Swedish Arbitration Act has been fulfilled in the event of a digital hear - ing. In this context, it has also been argued that a party’s right to an oral hearing has been violated in a virtual final hearing and that the party has thus not been given a fair trial in accordance with Article 6 of the European Convention on Human Rights (ECHR). In Swedish law, there is no established legal definition of the term “oral hearings”. 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 digital hearings were not a technical pos - sibility and were thus not considered when the Swed - ish law was enacted. The legislative history in fact lacks guidance as to what was meant by oral hear - ings. However, an openness to technological develop - ments 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
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