SWEDEN Trends and Developments Contributed by: Jerker Kjellander, Matilda Kronqvist and Selma Beganovic, Vinge
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 if the losing party had been able to 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 preparatory works, Section 24 (2) of the Swedish Arbitration Act has its background in Article 6 of the ECHR. It is also argued that questions of 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 Arbitration Act – in con - trast 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 can - not constitute an obstacle thereto. However, it is noted that the arbitral tribunal in each individual case should assess whether a procedure with digital elements is appropriate. The assessment should consider that the parties must be given the opportunity to present their case to a necessary extent, and that the dis - pute 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 the present case, the appellant had requested the hearing to 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 together 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 located 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 commu - nicate with each other, with the arbitral tribunal and with the witnesses called for the hearing. The Svea Court of Appeal concluded that the pro - cedure had guaranteed the parties’ equal treatment, that both parties had been given the opportunity to pursue their case to the fullest extent necessary, and that the procedure had not therefore conflicted with the principle of party autonomy. It is obvious that the Svea Court of Appeal was well aware of the prolonged debate on the issue of virtual hearings against the will of one party when delivering its judgment. The court provided more detailed legal reasoning than what would usually be the case. Thus, it is reasonable to assume that the court intended the judgment to provide future guidance, as it provided detailed legal reasoning. The court also ruled that the
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