Närliggande

17.The reason for the view argued here is that it is preferable to treat both parties equally and avoid the limping binding effect. Allowing one party the benefit of choosing seems unreasonable.In order to provide necessary business certainty and a rule that is in line with the expectations of both domestic and international parties, the starting point should be that both parties (A and C) remain bound by the agreement.This should apply despite the argument that the Emja rule contains an uncertain exception.In the view argued here, the “special circumstances” from Emja are no more uncertain than the diverse rules on transfer applicable in other jurisdictions and the unpredictability associated with fictitious applications of contract law justifications commonly used. What is more, the main rule for remaining parties is in fact quite certain and, considering Bulbank, the room for exceptions seems quite limited. In addition, all this criticism means is that the safety valve from Emja still requires further clarification, not that the solution as such is inappropriate. 4.4 The impact of NJA 2015 s. 1040 on the Emja rule and the standing of remaining parties The above conclusion that the Emja rule represents the state of the law for transfers of arbitration agreements must also be considered in relation to another recent development in Swedish contract law. Following the Supreme Court’s judgment in NJA 2015 s. 1040, it has been established that a remaining party (A) cannot generally rely on transfer restrictions contained in a contract against a third party (C), even if a wrongful transfer may give rise to damages between the original parties (A and B). This relates to the debated issue of what effect transfer restrictions included in the substantive contract have on the arbitration clause contained in the same contract.s. 643