Discussion about investment treaty arbitration awards in the Svea Court of Appeal
In a lunch discussion, Joel Dahlquist Cullborg and prof. Eric de Brabandere discussed the practice of domestic courts in reviewing arbitral awards based on investment treaties.
Joel Dahlquist Cullborg has recently defended a doctoral dissertation in international law at Uppsala University. It focuses partly on this issue and was used as a point of departure for the discussion. With a specific focus on the Svea Court of Appeal in Stockholm - which has seen many treaty-based challenge proceedings – Eric and Joel addressed questions such as the standard of review and the use of treaty interpretation in domestic courts. Eric introduced a comparative perspective by explaining the Dutch approach, based on some high-profile challenges of arbitral awards rendered by tribunals seated in The Hague and contrasting the Dutch practice to that of the Svea Court of Appeal. It was noticed that the various domestic courts involved in set-aside proceedings in different States use different standards of review, and that little cross-fertilisation or dialogue exists in this respect at the domestic level.
The two academics also discussed the importance of the place of arbitration in investment arbitration more generally, in particular following the European Court of Justice's Achmea judgement, which has put the spotlight on the relationship between EU law and investment arbitration and on the important role domestic courts may play in possible set-aside proceedings in this respect. There are currently two pending set-aside proceedings in Swedish courts where this question is front and center.