Decision by the Svea Court of Appeal, 31 January 2020. Case No. T 12462-19
The Republic of Kazakhstan (Kazakhstan) applied for a summons, moving that the Court of Appeal as per item 1, alternatively item 2, of the first paragraph of Section 33 of the Swedish Arbitration Act should declare an arbitral award (the Award) invalid. As legal grounds for its motion, Kazakhstan argued that the Award was invalid because it included the review of a matter which, under Swedish law, may not be decided by an arbitral tribunal and that the manner in which the Award was rendered was obviously in violation of fundamental principles of Swedish law.
However, through a judgment of 9 December 2016 in case no. T 2675-14, the Court of Appeal already rejected a case brought by Kazakhstan in which Kazakhstan moved, in the main, that the Court of Appeal should declare the Award invalid. The judgment has become final and binding.
The question before the Court of Appeal was therefore whether the application for a summons should be dismissed due to procedural impediment (res judicata).
The Court of Appeal first stated that The Swedish Code of Judicial Procedure stipulates that a judgment, after the period for appeals has expired, is final and binding as regards the matter which the case concerned, and a matter which has been decided thereby cannot be subjected to renewed court review.
Furthermore, the Court of Appeal found no reason that the rules on the binding and final nature of judgments should apply differently in a motion to have an arbitral award declared invalid.
Finally, since the Court of Appeal found that the matter was identical in both trials and that a procedural impediment was at hand, Kazakhstan’s application for a summons was dismissed.