Judgment in the Court of Appeal, 16 December 2015, Case No. T 975-15

Summary: The respondent/counterclaimant in an arbitration regarding a licencing agreement challenged the arbitral award, arguing that the tribunal had exceeded its mandate and committed procedural errors that affected the outcome of the arbitration. More specifically, the respondent/counterclaimant argued that the arbitral tribunal had erred by (1) contacting witnesses and requesting witness statements, and (2) accepting submission of new evidence after the cutoff date, despite having previously said that such submissions would be allowed only in certain circumstances.
 
The Svea Court of Appeal rejected the challenge. The Court held that the arbitral tribunal may not on its own initiative gather evidence, but once a party has referenced the evidence, the tribunal may act to ensure that the evidence can be heard by requesting or inviting witnesses to appear before the tribunal. Regarding the tribunal’s decision to allow submission of new evidence after the cut-off date, the Court held that the party challenging the award had failed to show that the tribunal was not entitled to deviate from its prior decision regarding such submissions. The Court explained that a tribunal has the power to adjust its own administrative decisions: “Events may transpire that prevent the arbitration from being administered in the agreed and decided manner. In these cases, the arbitral tribunal must do what it deems need be done, obviously while observing the fundamental principles that the parties must be treated equally and have the opportunity to sufficiently argue their respective cases. Most often, this does not mean that the arbitral tribunal commits a procedural error open to challenge.”

The Court of Appeal concluded that the tribunal had not exceeded its mandate or committed any procedural error, and that the arbitration award should not be set aside.