Processuella avtals betydelse i skiljeförfarandet

Abstract

The present study deals with agreements that restrict the parties’ ability to present evidence in an arbitration process. One of the most characteristic features of arbitration is the far-reaching effects of party anatomy. This has allowed for contracting parties to establish agreements that limit the heavily protected principle of freedom of evidence for the benefit of predictability. Crucially is that the requirement for due process is upheld in accordance with the LSF and the ECHR. Legal writers have discussed the situation when party autonomy and freedom of contract must yield to the requirement of due process when establishing an agreement that limits presentation of evidence.

An example of a clause which seeks to exclude the importance of negotiations and agreements prior to the conclusion of the contract is the merger clause. The clause’s background in the Anglo-American legal system is different from a Swedish counterpart in its function that it is dependent on the ancillary parol evidence rule. The rule essentially adopts the same function as a merger clause whereas the clause is introduced to confirm the parties’ intention to apply the rule in question. The rule’s function is to dismiss extrinsic evidence with the purpose to contradict, complement, reduce or modify the written final contract. The issue of the merger clause in the Swedish legal system considers being complicated given the principle of freedom of evidence. In legal literature and case law it has been discussed whether the clause should only be considered as a convincing argument of the question whether the parties intended to exclude evidence. Overall, English law is more permissive to the limitations of the evidence whereas Swedish law allows evidence to a greater extent. The Swedish legislation gives priority to the parties’ intentions whereas English law of evidence is highly formalistic and the wording of the agreement is regarded as decisive in a dispute.

It should be noted that the merger clause not only exclude oral evidence, but also written evidence. There is no clear answer to the question whether it should be regarded as permissible to establish a contract that only accepts written evidence at a future dispute. The assessment of how such agreements should be considered may likely include guidance taken from the merger clause’s admissibility with respect to its effect to limit evidence. Ultimately the requirements of due process in LSF and ECHR must also in this case be met.

• author: Olsson, Emelie
• supervisor: Lotta Maunsbach
• organization: Department of Law
• course: LAGF03 20131
• year: 2013
• type: M2 - Bachelor Degree
• subject: Law and Political Science
• keywords: arbitration, skiljemannarätt, avtalsrätt, processrätt, bevisbegränsande avtal, integrationsklausuler
• language: Swedish
• id: 3800970
• date added to LUP: 2013-09-11 14:27:19
• date last changed: 2013-09-11 14:27:19