1.The statutory authority of the arbitrators to determine their own jurisdiction does not however prevent a court from examining the arbitrators’ jurisdiction upon request by a party pursuant to the existing Arbitration Act. This follows from the section 2, first paragraph, second sentence of the Arbitration Act. Pursuant to this provision, a party has a possibility to turn to a court in order to have the arbitrators’ jurisdiction examined both when arbitral proceedings have already commenced and also where no arbitration is pending. The issue referred to the court for determination may be whether a party is bound at all by an arbitration agreement or may relate to the agreement’s applicability to a particular dispute or whether an impediment exists to the arbitration. A declaratory judgment by the court that has become final in the matter is binding on the arbitrators and also on a court that is subsequently requested, for instance after the award is contested in a challenge or invalidity proceeding, to consider the jurisdiction of the arbitrators.s. 655
2.If parties in international arbitrations have agreed that the arbitral proceedings shall take place in Sweden, then the Arbitration Act is applicable. From this it follows, pursuant to the Supreme Court’s judgment in NJA 2010 p. 508, that there is a sufficient connection between the dispute and the parties and the Swedish legal system. Swedish courts are thereby competent to rule on, inter alia, the arbitrators’ jurisdiction in matters where the place of arbitration is Sweden.s. 655
3.As referred to above, in arbitrations in Sweden the parties have a more or less unfettered right to bring a positive or negative declaratory claim before a district court concerning a declaratory judgment regarding the jurisdiction of the arbitrators. In this regard Swedish arbitration law differs from arbitration laws in a number of countries. The requirements for a declaratory action regarding the jurisdiction of the arbitrators are those generally applied with respect to a declaratory action in Sweden, and provided for by Chapter 13 Section 2(1) of the Swedish Code of Judicial Procedure. Consequently, the test applied is whether any uncertainty exists as to the legal relationship in question, and the uncertainty exposes the claimant to a detriment. The provision in section 2(1) is non-mandatory. This postulates a requirement that an action for a declaratory judgment with regard to the circumstances can be deemed to be appropriate for the action to be admissible.s. 655
4.In NJA 2010 s. 508, the Supreme Court held that as a rule, uncertainty regarding the legal relationship is demonstrated already by the fact that the parties disagree on the scope of the arbitrators’ jurisdiction. If the jurisdiction issue is not resolved before the arbitral proceedings have been concluded and the costs have accumulated, this may prove to be detrimental. Therefore, according to the Supreme Court, it could be argued that an action concerning lack of jurisdiction in a particular dispute under Section 2 of the Arbitration Act is appropriate and admissible if the case cannot be expected to be finally adjudicated at a time which, for instance, will result in significant cost savings in the arbitral proceedings. The Supreme Court concluded on the basis hereof that a party should be entitled to initiate an action under Section 2 of the Arbitration Act concerning the arbitrators’ jurisdiction prior to the issuance of an arbitral award, at least in situations where the award may not reasonably be expected in the near future.s. 656
5.The arbitrators may continue the arbitral proceedings pending the court’s decision. The arbitrators are not impeded by a declaratory action to suspend its determination of its jurisdiction, although they are allowed to render such decision if they deem this to be appropriate. However, if the arbitrators render a decision that they have jurisdiction then such a decision during the proceedings is not binding upon the arbitrators or the parties. The arbitrators may subsequently change their determination on jurisdiction if new facts come to light and they find it appropriate. Unless the parties have entered into a separate arbitration agreement to refer the issue of jurisdiction to the arbitrators, the arbitrators have no possibility to affirm their jurisdiction through a separate award in accordance with section 29, first paragraph, first sentence of the Arbitration Act. This is because only the determination of the substantive matter in dispute or other decision which terminates the proceedings pursuant to the Arbitration Act is recognized as an arbitral award under the Act.s. 657