Stycket

7.In NJA 2015 s. 991 the Supreme Court held that section 51 means that party autonomy is restricted, but that there is a difference between the situations regulated in sections 34 and 36. If application of section 36 is excluded by an agreement, then the Supreme Court underlined that the consequence is that a court is competent to decide the dispute. The Supreme Court held that the procedural safeguards are of great importance as a precondition for the legislation, which recognizes arbitration agreements and arbitral awards. The Court added that such safeguards have no relevance in cases where a court shall interpret section 36 in the SAA. The Court stated that a negative jurisdictional award would only have the effect that a court, not arbitrators, shall decide the dispute. The Supreme Court concluded that the restriction of party autonomy, when it comes to setting aside an award under section 34, had no bearing on an exclusion agreement referring to section 36. This means that that an exclusion agreement in respect of a negative jurisdictional award is effective both in international and domestic arbitration. However, it remains to be decided whether such a clause has to be clear.s. 425