1.The inconsistencies of the cases referred to above have caused a significant discussion among practitioners as well as created ambiguity as to how a court of law and a tribunal should proceed when determining the scope of an arbitration agreement. It may be added that the Supreme Court in NJA 2010 s. 734, in which case a prorogation clause in a dispute resolution agreement referred disputes under the contract to a district court designated in the agreement, added by way of an “obiter dictum”, that the fact that there is a connection between a disputed legal relationship and another legal relationship which is covered by an arbitration agreement can only in very rare cases and under very specific circumstances cause the arbitration agreement to be extended to include the disputed relationship. The Supreme Court concluded that such an exceptional case was deemed to have occurred in the Supreme Court case NJA 2007 s. 475 referred to above (it may be added that the panel of five Supreme Court Justices in NJA 2010 s. 734 who substantially narrowed down the scope of the decision in NJA 2007 s. 475 from what can be read from the decision itself, did not include any of the justices from the decision in 2007).s. 662
2.One must assume that the Supreme Court did not consider the legal principles expressed in the findings as being mutually contradictory considering that none of the cases described were determined by the Supreme Court in its entirety (cf. Chapter 3, Section 6 of the Code of Judicial Procedure which provides that if the Supreme Court during its deliberations finds that the prevailing opinion diverges from a legal principle or a construction of law previously adopted by the Supreme Court, it may be directed that the case in its entirety or, if it is feasible, only a certain issue in the case, shall be adjudicated by the Supreme Court in plenary session).s. 662
3.As a consequence of the aforesaid, it must be assumed that the different methods for determining jurisdiction as expressed above can be applied in parallel. The two principles could obviously lead to different results. However, the situations in which one principle should be used instead of the other are far from clear although in the decision from 2010 the Supreme Court clearly indicated that the doctrine of assertion is to be considered as the general rule.s. 662
4.Moreover, in case NJA 2008 s. 406 where the Supreme Court applied the doctrine of assertion it held that the tribunal’s failure to apply the doctrine of assertion constituted per se such a serious procedural error that the award should be set aside solely on this ground. Hence, the Supreme Court did not find it necessary to determine whether the tribunal did in fact have jurisdiction and that its failure to apply the doctrine of assertion had led to an incorrect determination. Nor, it seems, did the Supreme Court determine that the prerequisites for applying the doctrine of connection as developed by the Supreme Court in NJA 1973 s. 620, NJA 2007 s. 475 and NJA 2008 s. 120 were not at hand, rather it stated generally that pursuant to Swedish arbitration law, the arbitrators’ jurisdiction was to be determined on the basis of the doctrine of assertion.s. 663
5.On account of the grave consequences of failure to apply the doctrine of assertion when the doctrine is applicable and for many other reasons, it is unsatisfactory that Swedish arbitration law lacks clarity in such an important area as how to determine jurisdiction of arbitrators.s. 663
6.The Inquiry noted that the doctrine of assertion had generated much discussion among legal commentators and that it could not be established whether this doctrine was applied abroad in arbitration proceedings. Despite this, the Inquiry desisted from making any proposals with respect to the doctrine, stating instead that any remaining ambiguities in relation to this issue would have to be resolved by the courts.s. 663