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On the occasion of the 2013 ABA Moscow Dispute Resolution Conference Unfair Competition Between the Judicial System: Moot Court Session on Challenge of Swedish Arbitral Award. For Applicant : Johan Sidklev, Partner Setterwalls, Sweden

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On the occasion of the 2013 ABA Moscow Dispute Resolution Conference Unfair Competition Between the Judicial System:

Moot Court Session on Challenge of Swedish Arbitral Award

For Applicant: Johan Sidklev, Partner Setterwalls, Sweden

For Respondent: Henrik Fieber, Partner Roschier, Sweden

The Moot Court Judge: Jesper Tiberg, Partner Lindahl, Sweden


Moot Court Session - Challenge of Arbitral Award Conference Bar-a-Bas’ Request for Relief

  • Bar-a-Bas requests that the Court of Appeal shall set aside the Arbitration Award both as regards the merits and the costs.

  • Bar-a-Bas further claims compensation for its legal costs.

    Bar-a-Bas’ Legal Grounds

  • The Tribunal has exceeded its mandate

    • SAA Section 34, 1st para, item 2

  • The Tribunal has committed a procedural irregularity which probably has influenced the outcome of the award

    • SAA Section 34, 1st para, item 6

  • Bar-a-Bas requests that the Court of Appeal shall set aside the Arbitration Award both as regards the merits and the costs.

  • Bar-a-Bas further claims compensation for its legal costs.

    Bar-a-Bas’ Legal Grounds

  • The Tribunal has exceededitsmandate

    • SAA Section 34, 1st para, item 2

  • The Tribunal has committed a procedural irregularitywhichprobably has influenced the outcomeof the award

    • SAA Section 34, 1st para, item 6


Moot Court Session - Challenge of Arbitral Award Conference Bar-a-Bas’ Opening Statement

The Facts

  • Force majeure was the only defence invoked by Bar-a-Bas

  • Interpretation of force majeure under Russian law was determinative

  • Russian law reports from

  • Professor Duremar on behalf of the Applicant – well qualified

  • “Professor” Malvina on behalf of the Respondent – not qualified

  • The Tribunal denied Bar-a-Bas’ request to replace the incompetent interpreter

  • The Tribunal relied on Malvina and disposed of Duremar as “unhelpful”


Moot Court Session - Challenge of Arbitral Award Conference Bar-a-Bas’ Opening Statement (cont’d)

Section 34 of the SAA stipulates:

  • An award which may not be challenged in accordance with section 36 shall, following an application, be wholly or partially set aside upon motion of a party: […]2. if the arbitrators have made the award after the expiration of the period decided on by the parties, or where the arbitrators have otherwise exceeded their mandate; […]

  • 6. if, without fault of the party, there otherwise occurred an irregularity in the course of the proceedings which probably influenced the outcome of the case.[our emphasis]


  • Moot Court Session - Challenge of Arbitral Award Conference Bar-a-Bas’ Opening Statement (cont’d)

    • The decision not to replace the interpreter amounts to exceeding of mandate, alternatively a procedural irregularity, since it is

      • a breach of the SCC Rules and the SAA;

      • a breach of the principle of due process

    • The omission to verify ”Professor” Malvina’s purported expertise is an exceeding of mandate, alternatively, a procedural irregularity since

      • it is the core function of any tribunal to weigh and assess the evidence presented

        Conclusion → the Award shall be set aside in its entirety


    Moot Court Session - Challenge of Arbitral Award Conference Pin-Occhio’s position

    • Pin-Occhio requests that the Svea Court of Appeal deny the challenge

    • Pin-Occhio claims compensation for its legal costs in an amount to be stated later

      Pin-Occhio’s legal grounds

  • Pin-Occhio denies that the Arbitral Tribunal exceeded its mandate.

  • Pin-Occhio denies that any procedural irregularities occurred

  • Pin-Occhio denies any procedural irregularites influenced the outcome of the arbitration.


  • Moot Court Session - Challenge of Arbitral Award Conference Pin Occhio’s Opening Statement

    The Facts

    • No force majeure situation under relevant contract or applicable Russian law.

    • Decree a result of Bar-a-Bas’ failure to obtain export permits.

    • Expert reports

      • Professor Malvina – cited contracts and relevant Russian legislation  “very informative and credible”

      • Professor Duremar – “creative” interpretation of Russian law  “unhelpful”

    • Translation of cross-examination was professional and accurate


    Moot Court Session - Challenge of Arbitral Award Conference Pin-Occhio’s Opening Statement

    • The arbitral tribunal did not exceed its mandate.

      • No breach of the SCC Rules and the SAA.

      • No infringement of Bar-a-Bas due process rights

      • It is for the parties to present their case, but Bar-a-Bas failed to make use of its right to cross-examine

    • No procedural irregularity

    • Any procedural irregularity did not effect the outcome of the arbitration

      Conclusion  the challenge should be denied


    Moot Court Session - Challenge of Arbitral Award Conference The Court’s findings

    Reasons

    • The court first looks at the question regarding quality of the translation during the hearing.

      • Burden of proof on claimant

      • Possible legal basis is procedural irregularity – not excess of mandate

      • Must have likely affected the outcome

    • Material issues are not ground for challenge

    • Circumstances must be invoked within the challenge period - three months.


    Moot Court Session - Challenge of Arbitral Award Conference

    JUDGMENT

    Action Denied

    For the above reasons, Bar-a-Bas action should is denied.

    Bar-a-Bas should compensate Pin-Occhio for costs plus interest from the day hereof until payment is made.


    Moot Court Session - Challenge of Arbitral Award Conference Further comments

    • If translation would have been truly substandard

      • Most likely to amount to procedural irregularity – not excess of mandate

      • Need to show that the irregularity “probably influenced the outcome of the case”.

      • If excess of mandate – no need to show that what occurred influenced the outcome

    • Competence of experts

      • For the parties to present and rebut evidence.

      • Contradictory proceedings – the tribunal assesses evidence on the basis of what has been presented

    • Three month time limit

      • All circumstances must have been presented before the end of the challenge period


    Thank Conference you!

    Moscow, 27 September 2013

    Johan Sidklev, Henrik Fieber & Jesper Tiberg


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