1.for setting aside an award A party may waive, wholly or partly, its right to have an award set aside. A party can do so either during arbitration or before the arbitral proceedings start. The SAA section 34, paragraph 2 makes it evident that a party during arbitration may waive its right to invoke a certain ground for setting aside an award. It can be done expressly or implicitly. Thus, under this section a party may implicitly waive its right by participating in the proceedings without objection or in any other manner, which means that the party may be deemed to have made a waiver.s. 424
2.Before arbitration proceedings have started, foreign parties are not entitled to implicitly exclude or limit the application of grounds for setting aside an award. It can only be done “through an express written agreement” (SAA Section 51). Considering the risk that a party may sustain losses of its legal rights, the government held that a waiver has to be “clear” and “express”. According to the wording of section 51 it is only required that the written waiver is an express agreement, without touching upon the clarity. The government added that it is important that a party is not deprived of its right to recourse just by a reference to institutional rules, which may contain an exclusion clause, without the party’s knowledge.s. 424
3.The reason why a foreign party beforehand may only waive its right explicitly, seems to be that an exclusion agreement is aiming at abstract unknown procedural errors of varying types leading to more or less serious effects. The lack of foreseeability justifies the formal requirement of clarity, which forces the parties to carefully consider whether it is wise or venturesome to exclude the grounds for setting aside a future award.s. 424
4.In a Supreme Court case concerning the former Swedish Arbitration Act, the Court solved the question of uncertainty by applying a principle of burden of proof. The Court placed the burden upon the party who asserted that there was an effective exclusion agreement included in the ICC Rules. Under the ICC Rule Article 29 the parties undertook — to the extent it was legally possible — to waive their right to appeal the award. This clause may be interpreted as aiming only at an action for having an award invalidated due to substantive matters but not at exclusion agreements. The Supreme Court held that the respondent had not proved that the parties by the reference to the ICC Rules entered into an exclusion agreement. However, it seems that the uncertainty did not refer to the existence of facts, but rather in what way the ICC Article ought to be construed. This view would be clarified by explaining that it was not evident that the wording of the clause clearly expressed an exclusion agreement. Section 51 of the SAA is based on this view.s. 424
5.Sometimes arbitrators terminate the proceedings by declaring that they have no jurisdiction (negative jurisdictional award). Under the SAA section 36, an appeal court may amend such an award. An application for amendment has to be filed within a period of three month from the date when the party received the award. If no such application is made, the jurisdictional question is decided in a final and binding way. This means that a court has jurisdiction to decide the dispute. If the arbitrators reject the claimant’s case due to lack of jurisdiction, the claimant is forced to start court proceedings in order to have the dispute resolved by arbitrators. Sometimes the claimant wants to avoid litigation in the country where the respondent is domiciled, because it has no confidence in the courts of this country. Therefore, the claimant often considers it to be of great importance to exercise its right to convince an appeal court to reverse a negative jurisdictional award.s. 425
6.The parties may take different views on whether an ordinary exclusion agreement covers a negative jurisdictional award. It is evident from the wording of the SAA section 51 that it refers to exclusion of a party’s right to have an award set aside under the SAA section 34. This section does not mention proceedings under section 36 for having a negative jurisdictional award reversed. However, one may pose the question whether section 51 can be applied by analogy in two respects, namely as to the restriction of party autonomy and the requirement of clarity. The Supreme Court has dealt with an exclusion agreement where the parties “excluded any right of application or appeal to any court and in particular in connection with any question of jurisdiction or question of law arising in the arbitration or out of the award.” (Italics added here.) It shall be stressed that Swedish parties are not allowed to exclude their right to challenge an award.s. 425
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
8.The appeal court opined that an exclusion agreement on negative jurisdictional awards has to be express and clear without giving any reasons for its view. The Supreme Court, however, held that there was no cause to maintain a requirement of special clarity in order for an exclusion agreement on negative jurisdictional award to be effective. The reason for this was that such an award has no other consequences than the claimant having to start court proceedings. According to the Supreme Court, a clause that does not explicitly exclude appeal for amendment may be effective if it does so implicitly under ordinary principles of contract interpretation. In the case at hand the Court held that it was natural to conceive the wording of the clause as referring only to awards deciding the substantive issues. The Court opined that the wording allowed that the exclusion clause also covered procedural decisions. Then, the general aim of dispute resolution clauses was deemed to be a factor of great importance. The Court held that the clause expressed an evident intention that arbitrators should decide disputes, not courts. It was held to be inconsistent with this aim to interpret the exclusion clause in such a way that a negative jurisdictional award had been exempted from appeal under section 36. The Court added that appeal in such cases would promote the aim with the dispute resolution clause that arbitrators should decide disputes. These reasons were decisive for the interpretation of the exclusion clause. The Court concluded that the clause should be interpreted in such a way that the parties had not excluded appeal under section 36.s. 426
9.The reasons for the judgment mean that a strongly arbitrationfriendly interpretation creates a presumption that different types of exclusion agreements do not encompass the right of appeal of negative jurisdictional awards. In the case at hand, it is difficult to share the view of the Supreme Court that the wording of the clause was equivocal. The clause excluded “appeal to any court and in particular in connection with questions on jurisdiction”. It is difficult to interpret this clause as allowing appeal of awards on jurisdiction. Thus, the judgment places a heavy “drafting” burden on a party who wants to exclude appeal on negative jurisdiction awards. Using the cited words on jurisdiction will not suffice.s. 426
10.If an exclusion clause does not clearly refer to proceedings for having the award set aside, it may do so in a sufficiently clear manner as to the right to have a negative jurisdictional award reversed under section 36. Then, a party is entitled to have a jurisdictional award set aside under section 34. As the award cannot be challenged under section 36, a party is expressly allowed under section 34 to challenge the award under this section. In section 34 p. 1 it is provided that an award shall be set aside if the dispute is not covered by a valid arbitration agreement. This provision is not applicable as the challenge is based on “opposite view”, namely that the arbitrators erroneously have concluded that there is no covering arbitration agreement. Section 34 p. 6 on procedural errors is applicable.s. 427