Counsel Advokaten Fred Wennerholm and jur. kand. Martin Prager Settweralls Advokatbyrå Arsenalsgatan Stockholm

Size: px

Start display at page:

Download "Counsel Advokaten Fred Wennerholm and jur. kand. Martin Prager Settweralls Advokatbyrå Arsenalsgatan Stockholm"

Tyler Wilkerson
5 years ago
Views:

1 SVEA COURT OF APPEAL JUDGMENT Case No. Department September 2006 Ö Stockholm Division 1603 Page 1 (7) APPEALED DECISION Decision of the Stockholm District Court of 18 February 2005, in case T , see Appendix A APPELLANT 1. Hochtief AG Opernplatz 2, DE Essen, Germany Counsel Advokaten Fred Wennerholm and jur. kand. Martin Prager Settweralls Advokatbyrå Arsenalsgatan Stockholm 2. DDr. W.M. c/o Baier Lambert Rotenturmstrasse 12, A-1010 Vienna, Austria 3. Advokaten K.H. c/o Mannheimer Swartling Advokatbyrå AB Box 1711, Stockholm 4. Rechtsanwalt S.K. c/o Krauss, Sienz & Partner Montenstrasse 9, DE Munich, Germany Counsel to 2-4 Advokaterna Henrik Bielenstein and Hans Forssell Linklaters Advokatbyrå AB Box 5402, Stockholm COUNTERPARTY Soyak International Construction & Investment Inc. Büyükdere Caddesi No. 38, Mecidiyeköy, Istanbul, Turkey Counsel Advokat Sigvard Jarvin Jones Day 120, rue du Faubourg Saint-Honoré, FR Paris, France MATTER Decrease of fees to arbitrators; now question of dismissal, etc. JUDGMENT OF THE COURT OF APPEAL

2 1. The Court of Appeal amends the decision of the District Court only so far as that the amount payable by Soyak International Construction & Investment Inc. to Hochtief AG to compensate for litigation costs incurred before the District Court is determined to SEK one-hundred-fiftythousand (150,000) comprising of costs for legal counsel, plus interest pursuant to Section 6 of the Interest Act from 18 February 2005 until the date of payment. 2. The Court of Appeal dismisses the appeals of Messrs. W.M, K.H. and S.K. 3. Soyak International Construction & Investment Inc. is ordered to compensate Hochtief AG for its litigation costs before the Court of Appeal in the amount of SEK five-thousand (5,000), all comprising of costs for legal counsel, plus interest pursuant to Section 6 of the Interest Act as of this day until the date of payment. 4. Messrs. W.M, K.H. and S.K. shall jointly compensate Soyak International Construction & Investment Inc. for its litigation costs before the Court of Appeal in the amount of SEK twenty-five-thousand (25,000), all comprising of costs for legal counsel, plus interest pursuant to Section 6 of the Interest Act as of this day until the date of payment.

3 MOTIONS BEFORE THE COURT OF APPEAL Hochtief AG has moved that the Court of Appeal shall fully grant the claim for compensation of litigation costs made before the District Court. Messrs. W.M, K.H. and S.K. (the arbitrators) have claimed that the Court of Appeal shall dismiss the claim brought by Soyak International Construction & Investment Inc. Soyak has disputed any amendments to the decision of the District Court. The parties have claimed compensation for litigation costs before the Court of Appeal. GROUNDS OF THE COURT OF APPEAL The investigation The Court of Appeal has examined the file. The parties have referenced the same grounds as before the District Court and further elaborated thereon. The arbitrators have added that the District Court has not considered their objection to the parties having agreed that their fees should be finally determined by the Arbitration Institute of the Stockholm Chamber of Commerce (the Institute). Documentary evidence has been referenced. The decision of the Court of Appeal The litigation costs of Hochtief before the District Court Hochtief has claimed compensation for litigation costs in the amount of SEK 217,000. Hochtief has claimed that, among other things, the exchange of

4 written statements before the District Court was extensive and that the case was of a rare nature, which required complex considerations. The first paragraph of Section 8, Chapter 18 of the Swedish Code of Judicial Procedure provides that compensation for litigation costs shall fully cover the costs incurred for the preparation of the litigation and carrying out the litigation, as well as compensation to legal counsel, provided that the costs have been reasonable in order to defend the rights of the party. The parties dispute the compensation requested by Hochtief. The assessment must be made having regard to, among other things, the nature and extent of the case, as well as to the care and skill shown by Hochtief s counsel in performing his task. The file shows that the services rendered by the counsel before the District Court, as well as the complexity of the case, entitle Hochtief, according to the Court of Appeal, to compensation at a slightly higher amount than as determined by the District Court. The Court of Appeal holds that SEK 150,000 is reasonable compensation. Soyak s eligibility to make claims with respect to the arbitrators fees A party or an arbitrator is entitled to make claims before the District Court with respect to the arbitrators fees. The arbitral award shall clearly state what is required by a party wishing to challenge the award in this respect (first paragraph of Section 41 of the Swedish Arbitration Act (SFS 1999:116) (the LSF)). As noted by the District Court, the provision does not limit the right of a party to bring claims before a court in cases as is now relevant where the fees are determined by someone other than the arbitrators. However, it would appear from statements made in the preparatory works that the legislator has assumed that such rulings do not fall within the scope of Section 41 of the

5 LSF, even if they have been incorporated in the arbitral award (government bill 1998/99:35 p. 169 and 241; cf., however, Stefan Lindskog, Skiljeförfarande En kommentar, p f.). The Court of Appeal holds that the right to bring claims pursuant to Section 41 must be understood in conjunction with the provision in the second paragraph of Section 37, which provides that the arbitrators in a final arbitral award are entitled to order the parties to pay their fees. A party s challenge of an arbitral award is consequently possible only if the arbitral award contains an order to pay fees, which is enforceable against that party. The relevant arbitral award deals with the fees in the grounds as well as in the ruling. Item 2 of the ruling provides that the fees for the arbitration, determined by the Arbitration Institute of the Stockholm Chamber of Commerce to EUR 208, and SEK 59, shall be paid by equally by the parties. The wording could be taken to mean that the arbitrators have ruled only on the allocation of the fees between the parties, and that the fees have been stated only for information purposes, so the parties could understand what the allocation would entail for them. This interpretation has some support in the rules of the Institute, which is based on such a division of the decisions between the Institute and the arbitrators (Sections 39 and 40). The wording could also be taken to entail an order for the parties to pay the fees, mainly because the amount has been stated therein. This would possibly eventually have the character of a non-appealable decision, provided that the decision is not challenged before a court (cf. Lindskog, op. cit., p f.). Having regard to the above, a party should be entitled to have the issue of the fees which have been explicitly stated in the ruling tried by challenging them before a court. In light of the foregoing, the Court of Appeal finds that Section 41 does not preclude a party from challenging the arbitral award with respect to the fees of the arbitrators.

6 The arbitrators have claimed, in the alternative, that the parties have agreed that the fees to the arbitrators shall be finally determined by the Institute and that they thereby have waived the right to challenge the decision on fees. It is not disputed that the parties have agreed that the fees should be determined by the Institute, and that they have used a German language version of the rules when entering into the agreement to understand the relevant provisions (Section 39) thereon. Relevant to this case is that the word finally in the Swedish language version has not been directly translated into the German language version, and the parties can consequently not be deemed to have authorized the Institute to finally determine the fees. Thus, the parties cannot be deemed to have waived their right to challenge the arbitral award with respect to fees by way of an agreement. In view of the foregoing, and having regard to the fact no other impediments to try a case with respect to the fees of the arbitrators is at hand, the appeal shall be dismissed in this regard. The litigation costs before the Court of Appeal Hochtief has claimed compensation for its litigation costs in the amount of SEK 10,000. The claimed amount is deemed reasonable. Hochtief has been partially successful in its claim before the Court of Appeal. The Court of Appeal orders Soyak to compensate Hochtief for its litigation costs with half the claimed amount, SEK 5,000. With respect to the claim for dismissal, upon the outcome of the issue, the arbitrators shall compensate Soyak for its litigation costs before the Court of Appeal. Soyak has claimed in total SEK 35,000 to cover costs for legal counsel. The arbitrators have left it to the Court of Appeal to determine the reasonableness of the claim, as well as to determine how the claimed amount should be allocated between the claims brought by Soyak against the arbitrators and Hochtief, respectively. The Court of Appeal finds the claimed

7 amount reasonable. The Court of Appeal estimates that SEK 25,000 of the amount claimed by Soyak relates to the dispute with the arbitrators. Thus, the Court of Appeal orders the arbitrators to jointly compensate Soyak for its litigation costs before the Court of Appeal in the amount of SEK 25,000. HOW TO APPEAL, see appendix B Appeals to be submitted by 23 October 2006 [ILLEGIBLE SIGNATURES] The decision has been made by: Senior Judge of Appeal G.T., and Judges of Appeal P.E. (Reporting Judge of Appeal) and M.J. Unanimous.

CLAIMANT Systembolaget Aktiebolag, Reg. No Stockholm. RESPONDENT V&S Vin & Sprit Aktiebolag, Reg. No Stockholm

SVEA COURT OF APPEAL JUDGMENT Case No. 1 December 2009 T4548-08 Division 1602 Stockholm Page 1 (24) CLAIMANT Systembolaget Aktiebolag, Reg. No. 556059-9473 103 84 Stockholm Counsel: Advokaten J.M. and