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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
This ICC Guide to National Rules of Procedure for Recognition and Enforcement of Foreign Awards under the New York Convention is the third, updated edition to mark the 60th anniversary of the New York Convention. Country Answers, which reflect the state of law at 1 October 2018, have been provided in response to a Questionnaire drawn up by a task force of the ICC Commission on Arbitration and ADR.
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
Sweden.
2. Date of entry into force of the New York Convention
27 April 1972.
(Source: Ratification of the Convention on 28 Jan. 1972.)
3. Has any reservation been made under Article I(3) of the New York Convention regarding:
(a) reciprocity?
No.
(b) commercial relationships?
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement is sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
No. Swedish law recognizes an award as either domestic or foreign and therefore does not recognize the concept of a non-domestic award. An arbitral award made in Sweden (i.e. seat of the arbitration in Sweden) is always deemed to be domestic. An award made in another State is foreign. Hence, the division under Swedish law between foreign and domestic awards is based solely on territoriality.
(Source: Swedish Arbitration Act, s. 52.)
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
Main sources:
(i) Swedish Arbitration Act of 1999 (‘SAA’) (lagen om skiljeförfarande SFS 1999:116), ss. 52(60, which incorporates the New York Convention.
Additional Swedish sources of general relevance to procedure and enforcement:
(ii) Code of Judicial Procedure (SFS 1942:740);
(iii) Enforcement Code (SFS 1981:774);
(iv) Public Access to Information and Secrecy Act (SFS 2009:400); and
(v) court decisions.
C. Limitation periods (time limits)
6.
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
N/A.
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
An application for recognition and enforcement of a foreign arbitral award shall be made to the Svea Court of Appeal (Svea hovrätt) in Stockholm.
(Source: SAA, ss. 56, 59.)
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of the respondent in the jurisdiction, etc.)?
There are no specific jurisdictional requirements.
Although not clearly expressed by the SAA – nor by the New York Convention – the court granting recognition and enforcement must ensure it indeed relates to a foreign award and not a court judgment. This shall be tried by the court on its own motion (ex officio). If in doubt, it is for the applicant to prove that the decision is an award, as a procedural requirement. A verdict by the Arbitration Court of St Petersburg, Russia, was found not to be an arbitral award but a judgment by a commercial court and the application for enforcement was dismissed.
(Source: Supreme Court case Ö 5209-13, 30 March 2017.)
Also, an application for recognition and enforcement can only be made against a party clearly identified in the award as obligated, in damages or otherwise, to the applicant. If the application is made against a party who is not clearly identified as such in the award, the application shall be dismissed.
(Source: Supreme Court cases NJA 2014, p. 125, and NJA 2015, p. 433.)
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The decision is obtained through inter partes proceedings. An application for enforcement may not be granted unless the opposing party has been afforded an opportunity to express its opinion on the application.
(Source: SAA, s. 57.)
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
Yes. Decisions of the Svea Court of Appeal may be appealed, within four weeks, to the Supreme Court (Högsta domstolen).
(Source: SAA, s. 59; Code of Judicial Procedure, ch. 54 s. 3, ch. 56 s. 1.)
(b) How many levels of appeal or recourse are available against this decision?
One.
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets?
If the Svea Court of Appeal grants an application for recognition and enforcement of a foreign award, the award is immediately enforceable as a final Swedish court judgment, unless the Supreme Court orders a stay of execution. An application for execution of the award is filed with the Enforcement Authority (Kronofogde myndigheten), if the other party has assets in Sweden.
(Sources: SAA, s. 59; Enforcement Code, ch. 3 s. 3.)
E. Evidence required
12.
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. the arbitral award, the contract containing the arbitration clause, affidavits, witness statements, etc.)?
The original or certified copy of the arbitral award must be supplied and, unless the Svea Court of Appeal decides otherwise, a certified translation of the entire award. If the opposing party denies the existence of an arbitration agreement, the applicant must also provide the original or certified copy of the arbitration agreement or otherwise prove that an arbitration agreement was entered into. It may in this regard be noted that oral arbitration agreements are recognized in Sweden. The need for further evidence would depend on the other party’s objections against recognition and enforcement.
The parties may present new circumstances and evidence on procedural aspects of the arbitral proceedings in appeal before the Supreme Court.
(Source: SAA, ss. 56, 58, Supreme Court case NJA 2015 p. 315 and Supreme Court case Ö 5209-13, 14 September 2016.)
(b) Is it necessary to provide the entire document or only certain parts (e.g. the entire contract or only the arbitration clause)?
The entire arbitral award must be provided. In circumstances where the arbitration agreement must be supplied, the entire arbitration agreement should be provided.
(Source: SAA, ss. 56, 58.)
(c) Are originals or duly certified copies required?
The original award or a certified copy is required and, if need be (see above), the original or a certified copy of the arbitration agreement.
(d) How many originals or duly certified copies are required?
One original or one certified copy of the arbitral award is required and, if need be (see above), one original or one certified copy of the arbitration agreement.
(Source: SAA, s. 56.)
(e) Does the authority or court keep the originals that are filed?
Upon request, the court will return the original to the party who filed it.
13.
(a) Is it necessary to provide a translation of the documents supplied?
Unless the court decides otherwise, a certified Swedish translation of the required documents shall be appended to the application. As a matter of practice, it is rarely necessary to translate documents in Danish, Norwegian and English into Swedish.
The Svea Court of Appeal is also the court with which applications for enforcements of foreign judgments under the Brussels I Regulation are filed, and such applications are subject to similar translation requirements. In 2011, the Swedish Supreme Court upheld a decision of the Svea Court of Appeal refusing enforcement of an Austrian judgment written in German, which the applicant left untranslated despite being ordered by the court to provide a translation. Similar treatment can be expected for foreign arbitral awards.
(Source: Supreme Court case NJA 2011 p. 345.)
(b) If yes, into what language?
Swedish.
(c) Is it necessary for the translations to be certified and, if yes, by whom (by an official or sworn translator or by a diplomatic or consular agent (of which country?) or by some other person)?
Yes. The translation must be certified. The SAA does not set forth any specific requirements for certification. In practice, the court requires that the translation be done by an authorized translator.
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. the entire award or only the part setting forth the decisions; the entire contract or only the arbitration clause)?
A translation of the entire award and, if need be (see above), the arbitration agreement must be provided. There is no need for the applicant to provide a translation of the entire contract containing the arbitration agreement.
F. Stay of enforcement
14.
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V (1)(e) of the New York Convention?
Yes, the court may stay the proceedings if the opposing party objects that a petition to set aside the award has been lodged or a motion for a stay of execution has been filed in the country where the award was made.
(Source: SAA, s. 58.)
When assessing whether a stay should be granted, the court will consider the likelihood that the application to set aside the award will be granted. The Supreme Court has ruled on this issue in two cases and has adopted a rather restrictive approach to granting a stay of execution of a foreign arbitral award.
(Source: Supreme Court cases NJA 1979, p. 527, and NJA 1992, p. 733.)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
None.
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
No. However, at the applicant’s request, the court may order the other party to provide reasonable security, failing which enforcement might otherwise be ordered.
(Source: SAA, s. 58 para. 2.)
G. Confidentiality
15.
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
Yes, documents filed in the proceedings will become part of the public record. However, certain information in the submitted documents may be subject to limitations on publicity imposed by the Public Access to Information and Secrecy Act. For example, information about a party’s business or management conditions will be kept secret if it can be assumed that its disclosure would cause that party considerable harm.
(Source: Public Access to Information and Secrecy Act, ch. 36 s. 2.)
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
Normally, there are no hearings on recognition and enforcement.
If a hearing takes place, general Swedish rules on judicial procedure would apply. As a rule, court hearings are open to the public. However, a party may request that the hearing be closed to the public. The court may accede to such a request insofar as it relates to the information qualifying for protection under the Public Access to Information and Secrecy Act and the court deems it to be of extraordinary importance that such information should not be disclosed.
(Source: Code of Judicial Procedure, ch. 5 s.1.)
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business secrets or State secrets)?
Judgments on recognition and enforcement are public documents. To protect confidential information in the judgment, a party can request that the court remove the names of the parties or not disclose confidential information. In practice, courts rarely accede to such requests, unless the information qualifies for protection under the Public Access to Information and Secrecy Act.
(Source: Public Access to Information and Secrecy Act, ch. 36 s. 2 and ch. 43 s. 8.)
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
The SAA does not contain any provisions specifically dealing with the recognition and enforcement of interim or partial awards.
The SAA provides, however, that a foreign award may not be recognized and enforced if the respondent demonstrates that the award contains irregularities, that there were procedural errors in the arbitral proceedings or that the award is not yet binding on the parties. Hence, the same will be applicable for interim or partial awards.
(Source: SAA, ss. 53, 54.)
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. an order requiring a party to deliver up share certificates or other property)?
It is possible for the court to recognize and declare enforceable an award relating to non-monetary relief.
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
It is possible for a party to request enforcement of only a part of the award (e.g. a decision on one party’s payment obligations).
(Source: Svea Court of Appeal case Ö 511-13, 14 May 2013.)
If the award contains both decisions within and beyond the scope of the arbitration agreement, the decision falling within the mandate, provided it can be separated, may be recognized and enforced.
(Source: SAA, s. 54.)
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V (1)(e) of the New York Convention?
A foreign award which has been set aside by a court in the country where the award was made may not be enforced in Sweden.
(Source: SAA, s. 54(5).)
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
With regard to the execution by the Enforcement Authority of an enforcement decision (see Q.11 above), the opponent as debtor is obliged to identify its assets to the Authority which may be subject for execution. However, to facilitate execution, the applicant should identify any assets owned or controlled by the debtor that are known to the applicant.
(Source: Enforcement Code ch. 3 s. 14.)
The Svea Court of Appeal has confirmed that the Swedish law on the obligation of foreign claimants (i.e. those established outside the European Economic Area (‘EEA’)) to provide security for costs (SFS 1980:307) is applicable to proceedings on recognition and enforcement. This means that if the applicant is an entity established outside the EEA (which comprises EU member State and three EFTA States – Iceland, Liechenstein and Norway), the court may, upon request by a respondent established in the EEA, decide that the applicant shall provide security for the costs that the respondent may incur for the proceedings. Failing this, the application will be dismissed.
(Source: Svea Court of Appeal case Ö 3377-13, 27 Sept. 2013 (RH 2014:50).)
Country Rapporteur: Karl Johan Dhunér