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, SwedenFor Respondent: Henrik Fieber, Partner Roschier, SwedenThe Moot Court Judge: Jesper Tiberg, Partner Lindahl, Sweden
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Moot Court Session - Challenge of Arbitral Award
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 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
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Moot Court Session - Challenge of Arbitral Award
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
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
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
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Moot Court Session - Challenge of Arbitral Award
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.
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Moot Court Session - Challenge of Arbitral Award
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 reportsProfessor 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
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
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Moot Court Session - Challenge of Arbitral Award
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 AwardJUDGMENT
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
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 you!Moscow, 27 September 2013Johan Sidklev, Henrik Fieber & Jesper Tiberg
