Arbitral Jurisdiction in Respect of ClaimsBased on Fraud and Other Non-contractualGrounds

Abstract

In commercial arbitration, it is relatively common that some claims or part of claims are based on tortious or criminal liability. This chapter examines the issue of whether an arbitral tribunal in commercial arbitration is authorized to try claims based on tort, fraud, bribery and other non-contractual grounds, assuming that the arbitration agreement is worded in accordance with the commonly used model arbitration clauses. The focus is on the position taken under Swedish and other Nordic laws.
         The legal development both in Sweden and in other Nordic jurisdictions referred to in the chapter shows an increased focus on the interpretation of the arbitration clause and the reasonable expectations of the parties to the agreement, rather than on limiting the scope of the matters to be resolved by arbitration due to a narrow interpretation of the concept of ‘legal relationship’ found in the New York Convention and in national legislation. Thus, it appears from case law that claims based on non-contractual liability are generally accepted in arbitrations seated in the Nordics, provided that the arbitration clause, interpreted according to general contract interpretation principles, is deemed to cover the disputed facts in question.