Young Arbitrators Sweden (YAS) Arbitration Day 2024
THE AUTHOR:
Jake Lowther, Specialist Counsel at the SCC Arbitration Institute
Louie Ottosen, Legal Trainee at Holst
On 28 November 2024, Young Arbitrators Sweden (YAS) held its annual Arbitration Day (Sw. Skiljeförfarandedagen) in Stockholm, with a record number of delegates welcomed by Viktor Fransson, Trygg-Hansa. The event has for over 20 years brought together young dispute resolution practitioners and experts from Sweden and beyond to share experiences and insights into the practice of arbitration.
This year’s conference took place as Swedish residents were receiving their copies of “In case of crisis or war”, the Swedish Civil Contingencies Agency’s updated brochure advising on how to prepare and what to do in the event of crisis or war. The brochure is a call for unity, to build resilience, and a reminder of every resident’s duty to defend our democracy and independence. YAS Arbitration Day 2024 was thus a timely opportunity to reflect on the arbitration practitioner’s role in maintaining communication and the rule of law, to balance the traditional and the progressive, and to peaceful resolution in a complex world.
This article reports on the day’s key takeaways, including practical advice on what young arbitration practitioners can learn from judges and civil procedure, how to take advantage of an increasingly AI-integrated legal industry, how to take advantage of a changing economic market, how to deal with difficulties created by clients or the other side, as well as insights from young solo arbitration practitioners and from the results of the Swedish Arbitration Association’s (SAA) Arbitration Reports project “High-quality arbitration in Sweden” (SAA Reports).
What Can Arbitrators Learn from Judges?
Kicking off the conference, Niklas Berntorp (Stockholm District Court), Philippe Benalal (A1 Advokater), Emma Munde (Svea Court of Appeal), and Sandra Kaznova (Hammarskiöld), moderated by Tom Sundin (Westerberg & Partners), shared insights on the decision maker’s role across different fora. A key difference between arbitrators and judges is their respective caseloads. While an arbitrator may live with a case for a long time, a judge administers numerous cases at once, having less time to assess and analyse the issues. Judges must assess complex matters in short time periods and the work is less “front-loaded” compared to arbitration.
While arbitrators often excel as specialists, they might be inspired by the (Swedish) generalist judge’s more active role in the proceeding, a point that would prove to be a golden thread throughout the day. Applying the Swedish Code of Judicial Procedure (Sw. Rättegångsbalken) (Code), a judge might be able to direct the proceeding better than a passive arbitrator exhibiting “due process paranoia”.
Future Prospects for Young Arbitration Lawyers in an AI-Integrated Legal Industry
As a highly digital society, the intersection of AI and the law in Sweden was of course on the agenda, including a demonstration of JUNO AI from Selcük Ünlü (Karnov Region North) and Carl Fernandez (Norstedts Juridik). According to the latest data, AI adoption has increased from 19% in 2023 to 79% in 2024, and some 74% of hourly billable tasks could be automated. While AI may be faster and more available, the arbitration lawyer continues to excel at making nuanced judgements, based on attributes such as emotion, creativity, and interpersonal skills. The question is, for how much longer?
What Can Arbitration Practitioners Draw from (Swedish) Procedural Law?
In her inimitable style, Patricia Shaughnessy (Stockholm University), moderated a coffeehouse debate between Asade Pourmand (Schjødt) and Rasmus Lüning (White & Case), and Daniel McKiernan (Gernandt & Danielsson) and Anna Sundquist (Wallin & Partners). To the applicability of (Swedish) procedural law in arbitration, the debate centred on whether the choice of arbitration was an exclusion of the Code by the parties, versus the position that the lex arbitri serves as a “gap filler”. To the role of the arbitrator and the extent of an obligation to render a materially correct award, the debate centred on the extent to which an arbitrator can and should take an active role. The arbitrator should clarify anything unclear during the proceeding; however, the adversarial nature of arbitration implies that the parties should be in control. As Prof. Shaughnessy concluded, perhaps the answer lies somewhere in the middle, a loose translation of “lagom”, a typification of the Swedish way.
Taking Advantage of a Changing Market
Business sentiment in Sweden continues to be lower than average, with EV-battery producer Northvolt’s recent application for a Chapter 11 reorganisation as one example. How should arbitration practitioners deal with issues raised by the insolvency of a party? In a changing economic environment, this relevant topic was addressed by Leonardo Merino (Merino Law Firm). In Sweden, the role of the bankruptcy trustee is to protect the common interests of the creditors in a bankrupt estate. The competing interests of the many potential stakeholders in bankruptcy estates, including employees, landlords, customers, suppliers, etc., inevitably lead to more disputes. Moreover, in exercising its role, a bankruptcy trustee in Sweden might pursue (clawback) claims in a specific form of dispute resolution that includes settlement negotiations familiar to many arbitration lawyers. In the bankruptcy trustee’s pursuit of a claim, the abandonment of a claim, acting in their own name in proceedings on behalf of the bankruptcy estate (Sw. processkommission), and third-party funding were presented as practical solutions to protect the bankruptcy estate’s interests and ensure access to justice.
Dealing with Difficulties Created by Clients or the Other Side
A panel consisting of Magnus Pärssinen (Wallin & Partners), Emilia Lundberg (Lundberg Advokat), Magdalena Berg (Magnusson) and Annika Pynnä Lindskog (Roschier) and was moderated by Oskar Magnusson (Roschier), discussed obstructive counterparties and clients from the arbitrator and counsel perspectives.
Obstruction can take many forms but usually materialises in efforts with disloyal and dilatory aims. Examples include delaying submissions to holidays, the last day of the deadline, late payments of the advance on costs, and late nominations of arbitrators. While the panellists acknowledged that there is a fine line between procedural strategy and obstruction, several measures can be used to mitigate the latter. It is important to set the tone from the case management conference. Arbitrators should elect to be strict when necessary. For example, a submission late by a minute is not in and of itself obstructive, but what if such minor transgressions carry on? The passiveness of an arbitrator was again a relevant aspect here. Also important is the communication between the parties and the arbitrator. An aggrieved party should be clear in its requests for relief.
Insights From Young Solo Practitioners
When is the time right to go solo? Armand Terrien (Terrien Avocat) and Pacôme Ziegler (Delaloa), moderated by Malcolm Robach (Mannheimer Swartling), shared their experiences navigating this journey. Although there appears to be an increasing trend, the decision takes courage, a willingness to deal with little visibility and lonesome moments, and a little faith. However, time will tell if there is greater consolidation among independent practitioners.
Key Takeaways from the SAA Reports
The next topic of the day was the SAA Reports, “High quality arbitration in Sweden”, presented by Kristoffer Löf (Mannheimer Swartling) and Maria Fogdestam Agius (Westerberg & Partners). The work consists of five Swedish reports on the arbitration process, hearings, (expert) witness statements, efficiency and due process in arbitration and the arbitration award. The reports were drafted by individual project groups, and represent the combined consensus of 34 authors across the academic and practitioner spectrum.
Lessons Learned by Those Who Have Been There Before
The last panel was a refreshingly frank discussion on past mistakes, with Martin Rifall (Snellman), Katarina Mild (Kastell), Erika Finn (Kilpatrick) and Åsa Waller (Mannheimer Swartling), moderated by Marika Jaaniste (Hammarskiöld) daring to share personal experiences.
Based on the panellists’ various war stories, the audience was provided with several practical tips on topics ranging from framing a case, choice of arbitrators, the main hearing, to witness examination. Takeaways for the audience included to avoid overcomplicating the case with “legal brilliance”, but to keep things simple and focus on the facts. Similarly, when choosing an arbitrator, counsel should screen CVs and publications for possible legal views, but the process need not be overcomplicated. Counsel should also avoid being too script-bound at the hearing and try to speak with their witness immediately prior to their cross-examination, to alleviate nervousness and minimise the risk of case implosion. Finally, avoid submission deadlines on a Friday!
Conclusion
YAS Arbitration Day 2024 formally concluded with independent arbitrator Richard Wikström-Hermansen presenting the YAS Prize for Best Arbitration Essay 2024 to Wilma Jonsson (Hansen) for her essay on the limits of an arbitration clause in a party-relationship in light of the recent case NJA 2023 p. 427. The keynote speaker at dinner was Haakon Bingen (Wikborg Rein), who spoke on the challenges encountered when representing clients in a war zone, the importance of maintaining communication across legal and cultural backgrounds, forming and maintaining social bonds, and maintaining the belief that the rule of law will prevail in the end.
ABOUT THE AUTHOR
Jake Lowther refers to himself as a “civilized common law lawyer”, having first qualified in Australia and then in Sweden. He is currently Specialist Counsel at the SCC Arbitration Institute (“SCC”) in Stockholm. Prior to joining the SCC, Jake was an Associate in the M&A and dispute resolution teams at Nordic-Baltic law firm Magnusson. Before this Jake worked in Seoul, Korea as Foreign Legal Specialist at the Korean Commercial Arbitration Board’s international division, KCAB INTERNATIONAL. Jake also has experience of arbitration practice in Germany, which he obtained alongside completing the International Dispute Resolution LL.M. program at Humboldt-University of Berlin. Jake began his legal career at Ashurst in Australia, where he worked in the employment, M&A, and infrastructure teams.
Louie Ottosen is a master’s candidate at Aarhus University, Department of Law, and works at Danish law firm Holst. During his studies, Louie has, among other things, participated in the 31st Willem C. Vis International Commercial Arbitration Moot, and interned at the Stockholm-based litigation funder, Litigium Capital AB.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
