Judgment of the Svea Court of Appeal, 22 April 2013, Case No. T 6123-12
Summary: The party challenged the arbitral award alleging, among other grounds, that the tribunal had exceeded its mandate by deciding whether or not the party’s actions constituted a crime (Section 34(2) Swedish Arbitration Act, “SAA”). The party explained that the tribunal’s mandate was to decide on the interpretation and application of the contract and not on non-contractual issues as to whether the actions of the party constituted a crime. Early in the arbitral proceedings, the party had challenged the jurisdiction of the tribunal, maintaining that the arbitration clause was too narrow and didn’t cover the dispute. After the tribunal’s positive decision on jurisdiction, the party requested the Solna District Court to declare that the tribunal lacked jurisdiction to decide the case. Yet, the Solna District Court declared that the tribunal had jurisdiction. In the Svea Court, the party maintained that the current challenge to the arbitrator’s excess of mandate was a more detailed account of the same challenge ground to the tribunal’s jurisdiction, and it did not constitute a new challenge ground. The Svea Court of Appeal disagreed with the party and explained that from the legislative history of the referenced Section of the SAA, by challenge ground is not meant the individual items of the first paragraph of Section 34, but rather the legal facts to support the challenge. The Svea Court found that the party’s challenge to the tribunal’s mandate was based on new legal facts and was thereby a new challenge ground. This new challenge ground had been brought after expiry of the period for challenges and it was therefore, rejected.