Singular Succession and Arbitration Agreements: A Study of the Remaining Party's Duty to Arbitrate with a Successor in Light of the Emja and Electrolux Judgments
Independent thesis Advanced level (professional degree), 20 credits / 30 HE creditsStudent thesis
The consequences of singular succession on arbitration agreements has for long been a debated topic in Swedish arbitration law. Party substitution is commonplace in the economy, and predictability and certainty in the economy demands clarification of the consequences of transfers and restructurings on arbitration agreements. The issue is unregulated in the SAA and has so far been decided on the basis of a concise statement in the preparatory works and the succinct Supreme Court judgment NJA 1997 p 866 Emja.
This thesis investigates to what extent the remaining party (A) is bound by the arbitration agreement in a mutually binding contract vis-à-vis the transferee (C) when the whole contract, with both rights and obligations, has been transferred from B to C. It further examines to what extent A is bound to arbitrate with C in cases where a right only has been transferred. The study is conducted in light of the currently pending Supreme Court case T 4816-12 Electrolux and therefore seeks to identify what that case has provided so far and what the Supreme Court judgment can clarify.
It is found that where both rights and obligations are transferred, A’s consent to transfer the main contract results in a presumption that the arbitration agreement follows with it. The presumption can be rebutted through an explicit qualification regarding the arbitration agreement or a transfer restriction in the main contract. When rights only are transferred to C, the state of the law is more uncertain. It is found that the rule pronounced in Emja, that A remains bound by the arbitration agreement against C absent “special circumstances”, is the state of the law concerning remaining parties. The rule is motivated by pressing policy arguments, and need not be supported by strict contract law mechanisms. The Emja rule can be avoided through the use of transfer restrictions contained in the main contract.
Place, publisher, year, edition, pages
2015. , 71 p.
arbitration, succession, singular, remaining party
skiljeförfarande, skiljemannarätt, succession, singular, kvarvarande part
IdentifiersURN: urn:nbn:se:uu:diva-241751OAI: oai:DiVA.org:uu-241751DiVA: diva2:781421
Hobér, Kaj, professor