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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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For applicant johan sidklev partner setterwalls sweden

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


For applicant johan sidklev partner setterwalls 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


For applicant johan sidklev partner setterwalls sweden

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”


For applicant johan sidklev partner setterwalls sweden

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]


  • For applicant johan sidklev partner setterwalls sweden

    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


    For applicant johan sidklev partner setterwalls sweden

    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.


  • For applicant johan sidklev partner setterwalls sweden

    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


    For applicant johan sidklev partner setterwalls sweden

    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


    For applicant johan sidklev partner setterwalls sweden

    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.


    For applicant johan sidklev partner setterwalls sweden

    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.


    For applicant johan sidklev partner setterwalls sweden

    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


    For applicant johan sidklev partner setterwalls sweden

    Thank Conference you!

    Moscow, 27 September 2013

    Johan Sidklev, Henrik Fieber & Jesper Tiberg