Judgment of the Supreme Court, 21 April 2016, Case No. Ö 1429-15

Summary: A party in an ongoing arbitration initiated court proceedings under section 2 of the Swedish Arbitration Act, which provides that public courts may, on motion of a party, review an arbitral tribunal’s jurisdiction while the arbitration remains open. Here, the party moved the court to affirm that (i) the parties were not bound by an arbitration agreement, and (ii) even if the parties were bound by an arbitration agreement, the tribunal lacked jurisdiction to resolve the dispute. The counterparty moved to dismiss ground (ii), arguing that this ground went was beyond the limits of the court’s mandate under Section 2. The Court of Appeal agreed, stating that the court’s review of the arbitral tribunal’s jurisdiction is limited to the existence of a valid and applicable arbitration agreement. The Supreme Court reversed the Court of Appeal, holding that Section 2 should be interpreted so that the scope of the court’s jurisdictional review is commensurate with that of the arbitral tribunal. In other words, the court’s mandate to review a tribunal’s jurisdiction in an ongoing arbitration covers all jurisdictional issues, and is not limited to the issue of whether the parties are bound by an arbitration agreement.