Judgment of the Svea Court of Appeal, 10 April 2013, Case No. T 2484-11

Summary: The appellant requested the Svea Court of Appeal to set aside the award alleging, among other grounds, that circumstances existed that raised doubts as to the independence and impartiality of arbitrator X. The appellant alleged that:  1) X was arbitrator once in a previous arbitration where the claimants’ affiliate company was a party; 2) X was arbitrator in a previous arbitration, where one of the parties had been represented by the same law firm that represented the claimants in the present case; 3) X used to be a board member of the institute that administered the dispute; 4) X had professional ties to counsel for claimant, as they used to be board members in the same institution. The Svea Court of Appeal explained that the determination of whether circumstances exist that raise doubts as to the impartiality of an arbitrator, shall be made on objective grounds. The Court also used as guidance the IBA Guidelines on Conflicts of Interest in International Arbitration. As for 1) the Court explained that Section 3.1.3. of the Guidelines requires that an arbitrator during a three year period for the third time is appointed as arbitrator by the same party or an affiliate of that party. The Court found that there was no example in Swedish case law where an arbitrator has been deemed ineligible because it had once earlier been appointed by the same party or by a member of the same group of companies. As for 2) the Court explained repeated appointments by the same law firm can give the impression that the arbitrator has ties to that law firm and thereby raise doubts as to its impartiality. Yet, in the previous arbitration, X was not appointed by the party represented by the same firm as claimant in the present arbitration, but by the counterparty. As for 3) the Court explained that X’s membership in the board was stated in X’s CV, which had been provided to the parties during the arbitration. The appellant had participated in the arbitration, failing to raise a challenge. The Court deemed that the appellant had waived its right to rely on this circumstance. As for 4) the Court explained that even if there were professional ties between X and the counsel through membership in the board, the appellant had failed to establish that those ties were due to any other fact than that they have cared for their respective interests and developed their respective professional career in arbitration. The court found that such professional tie didn’t damage their trustworthiness. The Court rejected the challenge on the grounds of alleged lack of independence and impartiality.