MEALEY’S International Arbitration Report
21, #6 June 2006
Article
Arbitrator Impartiality:
Appearance Is Everything
By
Hans Bagner
[Editor’s Note: Hans Bagner is a partner with Vinge,
one of the largest law firms in Sweden, working out of
Stockholm and London. He was the Swedish member
of the ICC, International Court of Arbitration, during
1996 – 2002. Copyright by the author 2006. Replies
to this article are welcome.]
Introduction
It is important for the business community that the
arbitral procedure enjoys its full confidence. Given
that an award cannot be challenged on its merits, arbi-
trators are required to meet and maintain the highest
level of independence and impartiality. Arbitrators are
therefore required to promptly disclose circumstances
which may conceivably question their independence
or impartiality.
Svea Court of Appeal
Recently, the Svea Court of Appeal in Stockholm being
the first and normally the last instance trying a challenge
of an arbitral award, was asked to set aside an arbitral
award where the chairman of the tribunal allegedly was
not impartial to the extent required by the Arbitration
Act.1 The claimant (Anders Jilkén) alleged that the chair-
man of the tribunal, the former Supreme Court Justice
Johan Lind had a special relationship with respondent,
Ericsson AB, being part of the Ericsson group of com-
panies. The Ericsson group was a major client of the
law firm Mannheimer Swartling advokatbyrå (MSA),
possibly its largest client. Justice Lind was a consultant
of the law firm and had his offices at the firm.
It should be noted that the dispute, which was subject
to arbitration, originated from an employment con-
Vol.
tract between Jilkén and Ericsson AB, which contract
had been terminated by Ericsson. During the arbitral
proceedings Ericsson was represented by a specialist
employment consultant. The arbitral tribunal dis-
missed Jilkén’s claim.
In the challenge proceedings, it was alleged that Er-
icsson’s general counsel had previously been a partner
at MSA and that he remained a close friend with the
partners at the firm. MSA did not take on any assign-
ments against the Ericsson group.
Lind was not only working in the MSA offices, but
was enjoying the firm’s administrative support and
had access to all office records. He used MSA letter
head and it would seem that the arbitral documents
were part of MSA’s server.
Although Lind had his own email address and a
direct telephone line, the website of MSA described
him as a colleague and consultant associated with
the firm since 2000. Furthermore, the Swedish Bar
Directory listed Lind under the MSA heading as a
consultant.
Lind did not disclose during the arbitral process that
the Ericsson group was a client of MSA, nor did he
mention anything about the close relationship be-
tween MSA and Ericsson.
Ericsson did not accept that Lind should be dis-
qualified. His assignment at MSA was only to give
legal advice to the firm’s lawyers and to participate
in the firm’s internal educational activities. Lind had
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Vol. 21, #6 June 2006
no direct contact with the firm’s clients. Moreover,
Lind was according to his consultancy agreement
entitled to take on arbitral assignments for his own
account.
Ericsson also argued that claimant was at the outset
of the arbitral proceedings aware of MSA’s relation-
ship with the Ericsson group without launching any
protest and was, therefore, prevented from using
this ground for a challenge. Claimant contested this
allegation.
Decision
Initially, the Court stated that Ericsson had since long
been an important client of MSA. As a result, MSA
would decline to represent any party against the Erics-
son group.
The Court examined Lind’s relationship with MSA,
noting that Lind had no contact with the firm’s cli-
ents and that his main task had been to assist in legal
analysis and drafting legal opinions. The Court found
that Lind was neither to be regarded as a regular as-
sociate nor as a partner; his position was relatively
independent.
The Court noted that Lind’s arbitration activity was
independent from MSA’s operations and that the law
firm did not share in any profit derived from this
activity. The Court concluded that the consultancy
agreement between Lind and MSA did not influence
or affect Lind’s impartiality.
The Court did conclude that Lind should have
informed the parties of his relationship with MSA
and the client relation between MSA and Ericsson.
Non-compliance with this duty to disclose does
not necessarily result in the arbitrator being unable
to serve as arbitrator. It is only one factor that the
Court will take into account when determining the
impartiality.
Appeal
Normally the Court of Appeal is the first and the last
instance in matters of challenge of arbitral awards.
However, the Court may exceptionally grant right to
appeal to the Supreme Court. In this case the Court
stated that the case contains matters of importance
for the development of the law. Therefore the deci-
sion by the Court may be appealed to the Supreme
2
MEALEY’S International Arbitration Report
Court. Claimant has exercised this right. The Su-
preme Court justices will now decide whether their
former colleague should have acted as arbitrator in
this case.
The Disciplinary Board Of The Swedish Bar
The Swedish Bar initiated on its own disciplinary pro-
ceedings against one partner at MSA responsible for
the supervision of the activities conducted by Lind.
The Board found that Lind having been employed by
MSA, should have declined the assignment to serve
as arbitrator in this case. The Board did, however,
not find that the partner in question had failed in his
supervisory duties.
Comments
The question of whether or not Lind is impartial
should be determined on the basis of an objective
test. The fact that Lind may actually be impartial
is without significance. Circumstances, which
may influence the arbitrator’s impartiality are
disqualifying, regardless of his or her ability to
decide the dispute impartially. Contrary to the
Model Law (Article 12) the Swedish Arbitration
Act does not employ the term “independence.”
It should, however, make no difference due to
the fact that if the arbitrator’s independence can
be questioned, this by itself should impair the
arbitrator’s impartiality.
The nature or the form of the monetary relations
between MSA and Lind would seem irrelevant for a
third party and should not have been a factor when
establishing whether or not Lind was in a position to
decide the dispute impartially.
The concept of impartiality cannot be interpreted
differently depending on whether Lind is a layman,
a lawyer or a former Supreme Court justice serving
as an arbitrator. Considering that the numbers of
lawyers in Sweden dealing with arbitration matters
is rather limited, the requirements of impartiality
should not be lowered due to particular qualifications
or standing.
As mentioned initially, it is important for the business
community that the arbitral procedure should have
the confidence of the general public. A key feature
in this respect is the duty to disclose, which must be
absolute. By having access to all relevant information,
MEALEY’S International Arbitration Report Vol. 21, #6 June 2006

it is then up to the parties to decide whether or not Endnote

the circumstances disclosed are critical. It cannot be
left to the individual arbitrator to decide whether the 1. Svea Court of Appeal’s decision on 5 May 2006,
information is relevant. case T 6876/04. ■