Choice of law in international arbitration proceedings in Sweden

Abstract

### Introduction THE scope of this article is limited to choice of law problems arising in international arbitrations in Sweden, ie, proceedings in disputes where at least one party is not a Swedish national. They relate typically to commercial or financial matters, and the conflict of laws issues hence also are found within the realm of commercial, corporate or financial law. But – particularly in cases involving parties whose legal systems are those of a planned economy – constitutional law and public law generally will often acquire great significance as well. The territorial limitation of this study (‘in Sweden’) need not be elaborated upon except to say that any proceedings located in that jurisdiction are envisaged, whether the contract under which the dispute has arisen so provides explicitly, the arbitral tribunal has so determined, or the parties have designated the locale ad hoc with regard to a difference only after its occurrence. ### Procedural and Substantive Law An initial distinction should of course be made between procedural law and substantive law. In the past few years, commentators in Sweden as elsewhere have generally devoted the greater part of their attention to the former, and this circumstance in itself constitutes a cogent reason to concentrate here on the rather more neglected substantive law aspects, and particularly its conflicts element. However, the very definition of substantive law in any given case is normally derived from the law applicable to the procedure in the case, ie, the lex fori . We are confronted here with a conceptual paradox composed of three elements. First, there is the doctrine of severability, or separability, of the arbitration agreement. Judge Schwebel of the International Court of Justice in a lecture on the subject delivered some years ago at Cambridge University summarised this doctrine – which is well entrenched both in Swedish law and in …