1.8.1 It would not clarify the contents of the doctrine As has been referred to above, the Arbitration Committee of the International Chamber of Commerce (ICC Sweden) in its response to the proposals by the Inquiry explained that the Committee shared the observation made by the Swedish Arbitration Association that despite the case law and the analysis thereof by the Inquiry and the discussion in legal commentary, the contents of the doctrine of assertion were still unclear. In the light thereof the Committee advised that the doctrine of assertion be codified through an amendment to the Arbitration Act.s. 664
2.However, it cannot be expected that an inclusion of a provision in the Arbitration Act stating that the doctrine of assertion is to be applied when jurisdictional issues are determined would provide the necessary clarification of the contents of the doctrine itself. 8.2 It is inconsistent with other parts of Swedish arbitration law To begin with, it may be noted that it is not possible to find support for the doctrine of assertion in the Arbitration Act. Section 4, first paragraph indicates that a court may not, against a party’s will, rule over a matter that has been reserved for an arbitral tribunal to decide. Furthermore, section 1, first paragraph first sentence states that disputes (my italics), which may be subject to an out of court settlement, may be submitted to arbitration. As regard to future disputes, this applies to legal relationships that are specified in the contract.s. 664
3.Generally, the term dispute is used in Swedish arbitration agreements to describe the scope of an arbitration agreement. For example, the SCC model arbitration clause specifies that: “[a]ny dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce.”s. 664
4.When it comes to the interpretation of an arbitration clause, standard interpretation principles of civil law are to be applied. Pursuant to Swedish law, this implies that the interpretation of the scope of an arbitration agreement should be based on general rules of contract interpretation in which the written word should be considered fundamental, but also other conditions could affect the interpretation. It should be mentioned that the Supreme Court in the case NJA 2007 s. 475 emphasized that the arbitration clause was worded in such a way that all disputes related to the main contract would be settled through arbitration. Also the Supreme Court in NJA 2012 s. 183 referred to how the clause was drafted.s. 665
5.It may therefore be assumed that a court or arbitral tribunal in most cases, pursuant to the Arbitration Act, if standard principles of interpretation are used, was intended to assess whether the parties, by using the word "dispute" in the arbitration clause, may be deemed to have agreed that a particular dispute which has subsequently arisen between the parties shall be covered by the arbitration clause. A “dispute” appears to be constituted not only by the claimant’s claim but also by the objections raised against it by the respondent. Thus as a matter of normal language usage, in this context one must also take into account the respondent's objections in order to determine whether the dispute falls within the scope of the arbitration agreement. Consequently, the crucial question is whether a dispute with the present claims and objections can be interpreted as a dispute under such an agreement. Thus, to begin with, the doctrine of assertion as applied by the Supreme Court would appear to be in conflict with how the Arbitration Act is drafted. 8.3 It deviates from generally accepted principles of arbitration law in other jurisdictions Furthermore, the question is whether the doctrine of assertion, in the sense that only the assertions presented by the claimant are considered upon determination of jurisdiction, has any equivalent in any other prominent arbitration jurisdictions, or whether the doctrine is to be considered as a divergent Swedish regulation. It has to be concluded that it is the predominant picture in international arbitration that customary national rules on contract interpretation should be followed. I have not found anything suggesting that the word "dispute" or the equivalent should be construed in any way other than in accordance with a common semantic method of interpretation.In a review of court cases concerning the New York Convention Article II (3) relating to an arbitration agreement’s effect as bars to judicial proceedings, I have not found any case that provides that only a claimant's assertions should be taken into account upon such determination. However, there are a number of court cases that take into consideration the respondent's objections. The doctrine of connection as explained above may in this context be said to be in greater harmony with the interpretation of arbitration agreements abroad. 8.4 It is not in conformity with the New York Convention It may be challenged that the doctrine of assertion, in the sense that only the assertions presented by the claimant are considered upon determination of what constitutes a dispute, can be said to be in conformity with the New York Convention of 1958.s. 665
6.The relevant question here is whether Swedish courts are at liberty to develop the principles on which to decide the applicability or validity of an arbitration agreement. Pursuant to section 48 (1) of the Arbitration Act, the law of the country where the proceedings take place shall govern the arbitration agreement provided that the parties have not agreed upon another law. This means that, in principle, Swedish law will govern the issues discussed here.s. 666
7.However, that does not imply that Swedish courts may develop legal principles in this area without restrictions. One prominent commentator has stated that “only generally applicable rules of contract law, and not rules which single arbitrations agreement out for special or idiosyncratic burdens, may be invoked to challenge the validity of an international arbitration agreement subject to the Convention. These limits are justified by the Article II’s reference to ordinary and generally accepted principles of contract law (“null and void, inoperative or incapable of being performed”) and by the Convention’s objective of ensuring that Contracting States recognize the validity of international arbitration agreements in accordance with uniform international standards.s. 667
8.In view of the fact that the doctrine of assertion seems to have no equivalence in other jurisdictions and that it may cause a more restrictive application of arbitral clauses, it is questionable if the doctrine complies with the underlying purpose of the Convention.s. 667
9.In addition it is likely that the restrictive application of the notion of legal relationship contravene the Convention. In the case NJA 2007 s. 475, the Supreme Court held that a non-contractual ground invoked by a claimant fell within the ambit of the arbitration agreement. The ruling has been questioned, inter alia, on the basis that the Supreme Court did not take into account the requirement set forth in section 1, first paragraph, second sentence of the Arbitration Act, which states that “future disputes” may only be referred to arbitration if the legal relationship (my italics) is explicitly mentioned in the arbitration agreement. As stated above, the Supreme court in NJA 2010 s. 734 added 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 cause the arbitration agreement to be extended to include the disputed relationship in very specific cases and under very specific circumstances. In accordance with this view, parties cannot generally agree that a non-contractual ground which has arisen after the formation of an arbitration agreement falls under the arbitration agreement. This is due to the notion that a noncontractual claim would relate to a different legal relationship than the one contained in the arbitration agreement.s. 667
10.This restrictive view of what constitutes a legal relationship and which to a large extent excludes non-contractual disputes seems not to be in conformity with the New York Convention. There is also a limitation on arbitration agreements governing future disputes under the New York Convention and the Model Law. However, both set of rules use the slightly different prerequisite described as “a defined legal relationship, whether contractual or not” (my italics) instead of the term “legal relationship” as used within the Arbitration Act.s. 668
11.It is of interest that the Geneva Protocol on arbitration clauses, introduced in 1923 and the predecessor to the New York Convention provided that arbitration agreements could relate to contracts.However, the New York Convention was drafted in such a manner that it was expressly stated that non-contractual disputes could be covered by an arbitration clause, why the term “contract” was replaced by the above-mentioned expression.The wording of the New York Convention has also been reflected in Article 7(1) of the Model Law. In conjunction with the enactment of this article in the Model Law, it was emphasized that the wording “a defined legal relationship, whether contractual or not” should be given “a wide interpretation so as to cover all non-contractual commercial cases occurring in practice.”s. 668
12.It seems as though there is a broad international consensus that the arbitration agreement may also cover non-contractual claims. This can be inferred from both the international case law as well as national arbitration laws which, in accordance with the Model Law and New York Convention, explicitly state that non-contractual claims are also covered.s. 669
13.Sweden, by acceding to the New York Convention in 1972, is committed to respecting arbitration agreements also with respect to disputes that are non-contractual (provided that the arbitration agreement otherwise meets the requirements of the Convention). Although Swedish law generally applies to questions of validity and applicability of arbitration agreements in connection with arbitrations in Sweden, the definition “legal relationship” in the Arbitration Act should generally not limit the arbitration clauses application solely to claims based directly on the main agreement. In fact, the definition “legal relationship” ought to be interpreted in a way that is similar to the expression used in the New York Convention, i.e. a legal relationship that is contractual or non-contractual.In light of this, a court or arbitral tribunal may find that a dispute in which the claim is based on non-contractual grounds has such a connection to the arbitration agreement that the dispute is deemed to be covered by an arbitration clause. Thus, the restrictive application of the term “legal relationship” by the Supreme Court appears to have no basis in the New York Convention.s. 669
14.Finally, NJA 2008 s. 406 establishes that if the facts on which the claimant bases its claim include facts which are relevant to both the substantive issue and to the jurisdiction of the tribunal, such facts are to be accepted by the tribunal without a meritorious review when determining the jurisdiction matter. As stated above, the Reporting Justice explained that this had the benefit of reserving the decision on the substantive matter solely for the tribunal without any court interference. Consequently, a court after a challenge to an award will not have the final say with respect to the jurisdiction of the tribunal. Thus, the doctrine of assertion may also result in a tribunal rendering an award after considering the substantive issues in those cases where the tribunal, according to its findings, was not competent to try the case.s. 670
15.However, it seems that a tribunal in an international arbitration regularly performs a full review of its jurisdiction also in cases where the same circumstances are of relevance to both the jurisdictional issue and the substantive issue (double-pertinent facts).According to the UNCITRAL Arbitration Rules and the Model Law (Article 23(3) and 16(3) respectively, the arbitral tribunal may rule on a plea that the arbitral tribunal does not have jurisdiction either as a preliminary question or in an award on the merits. This approach seems to be in line with the fact that whether an arbitral tribunal has jurisdiction over a dispute is an issue expressly contemplated by Article V(1)(c) the New York Convention. Whether the prerequisites are met is a question to be reviewed by an exequatur court, also in instances where the court may have to review issues of the merits of the award. 8.5 Disadvantages compared to the doctrine of connection In case NJA 2007 s. 475, the Supreme Court considered the fact that the dispute in its entirety could be settled in one forum if the noncontractual ground was embraced by the arbitration agreement. However, it does not seem consistent with Swedish arbitration law, or with the international arbitration law, to refer parties to consensual arbitration for a reason other than that an arbitration agreement exists between the parties. Accordingly, in the absence of any statutory law providing for this in applicable arbitration law, the parties cannot be forced to arbitrate due to reasons relating to achieving an effective dispute resolution.s. 670
16.However, it seems highly unlikely that commercial parties when they enter into an arbitration agreement would prefer some questions that are connected to the arbitration agreement to be settled in court and others by arbitration.s. 671
17.In a recently delivered judgment by the Supreme Court in case NJA 2013 s. 477, the Supreme Court held that a bifurcation of a dispute in arbitration and court proceedings would lead to a review of the merits of the dispute in two different proceedings causing complex issues and with lis pendens and res judicata being further complicated. Moreover, it would, in general, result in the dispute resolution lacking efficiency. Therefore, it is natural that arbitral tribunals and courts, when called upon to interpret arbitration clauses, assume to a considerable extent that it was not the intention of the parties to bifurcate the proceedings to different foras.s. 672
18.An interpretation of an arbitration agreement according to the doctrine of connection instead of the doctrine of assertion would provide a more flexible determination of the jurisdictional matter, which may take into account the parties typical intent of consolidating their disputes in one forum and thereby avoid inefficient dispute resolution by dividing the parties’ dispute to be considered in both court and arbitral proceedings. Such a dispute resolution mechanism does not only entail costs and delays but also entail significant risks of conflicting judgments and procedural irregularities associated with complex legal issues as was recognized by the Supreme Court in the above-mentioned case.s. 672
19.As has been referred to above, the contents of the doctrine of assertion has not been sufficiently explained and the consequences of making an error with regard to its application may have dire consequences. In contrast, the doctrine of connection is more in line with how jurisdictional matters are determined abroad and does not entail the same risks of making procedural errors. Hence, an application of the doctrine of connection should also result in a significantly reduced risk of procedural errors.s. 672
20.In view of the considerable disadvantages of applying the doctrine of assertion as set out above, the benefits as described in the case NJA 2008 s. 406 should be described as insignificant.s. 673