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This chapter provides a brief overview on some recent changes to the Swedish Arbitration Act as well as the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (the SCC Institute), as well as an insight into a sample of recent Swedish case law in the field of arbitration. Furthermore, this chapter includes a section describing the information and guidance from the SCC Institute regarding the covid-19 pandemic and a section describing the new SCC Platform.
- Background to the role of Sweden and the SCC Institute in international arbitration
- The efforts by the Swedish government to modernise the Swedish Arbitration Act
- The SCC Rules and key changes in its latest version
- The SCC Platform
- Information and guidance from the SCC Institute regarding the covid-19 pandemic
- A sample of recent Swedish case law in the field of arbitration
Referenced in this article
- The Arbitration Institute of the Stockholm Chamber of Commerce (the SCC Institute)
- The Swedish Arbitration Act
- The Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (the SCC Rules)
- The Swedish Supreme Court, Case T 5437-17 (published in NJA 2019 section 171)
- The Swedish Supreme Court, Case T 796-18 (published in NJA 2019 section 382)
- Svea Court of Appeal, Case ÖÄ 7709-19
Sweden has a long-standing tradition of resolving civil disputes through arbitration. In 1734, Sweden passed a law that allowed parties to resolve certain forms of disputes by means of arbitration, and in the late 1800s Sweden adopted its first comprehensive arbitration act. Moreover, over the course of the 20th century, Sweden positioned itself as a popular venue for international arbitration. During the Cold War, parties from the United States (and other Western countries), the Soviet Union and China regarded Sweden as a neutral venue and the Arbitration Institute of the Stockholm Chamber of Commerce (the SCC Institute) as a neutral administrator of disputes. Therefore, they frequently included arbitration clauses in their agreements that stipulated that the seat of arbitration should be Stockholm, Sweden, and that the arbitration should be administrated by the SCC Institute. Since then, the SCC Institute’s popularity has anything but declined.
During the past 10 years, the SCC has had 152 to 216 new cases every year, of which around half have been international arbitrations. In 2019, 175 new cases were registered with the SCC.Of the 175 new cases in 2019 a total of 88 cases were international disputes involving parties from 43 other countries than Sweden. As regards the administration of investment treaty disputes, the SCC Institute ranks as the second largest institution in the world. In short, Sweden continues to be one of the world-leading forums for international arbitration.
Several factors may explain why Sweden has established itself as one of the most popular venues for international arbitration. Sweden’s reputation as a relatively independent state as far as world affairs is concerned continues to be cited as one main reason. In addition, it is often recognised that the Swedish justice system demonstrates a high degree of efficiency and respect for the rule of law. Further, Sweden has promoted itself internationally by being an active participant when rules and standards pertaining to international arbitration have been adopted.
Notably, the Swedish government has recently taken steps to maintain and develop Sweden’s position as a hub for international arbitration. In August 2018, the government introduced a new bill titled ‘A modernisation of the Arbitration Act’. The bill contained several proposals intended to make the law even more easily accessible to Swedish and foreign parties and lawyers alike, and to ensure that Sweden remains a popular venue for international arbitration. The revised Arbitration Act entered into force on 1 March 2019.
Below, we summarise some of the new provisions of the Arbitration Act that entered into force on 1 March 2019. In the following section, we provide a brief introduction to the SCC Rules and to SCC arbitrations, including an overview of the information and guidance from the SCC Institute regarding the covid-19 pandemic. In the final section, we comment on a sample of recent Swedish case law in the field of arbitration.
Amendments to the Swedish Arbitration Act
As noted above, a revised Arbitration Act entered into force on 1 March 2019. Below, we summarise some of the key amendments of the Arbitration Act:
Brief introduction to the SCC Rules
Many of the provisions set out in the Arbitration Act are optional. Thus, to a large extent, the parties may decide whether their procedure shall be governed by the Arbitration Act or other rules. For example, the parties may agree that an arbitration shall be governed by a set of rules provided by an institution. As mentioned, institutional arbitration is very common in Sweden and most of these proceedings are administered by the SCC Institute and governed by the SCC Rules.
The latest version of the SCC Rules entered into force on 1 January 2017. The SCC Rules govern all fundamental aspects of the arbitral proceedings including, for example, confidentiality, the initiation of proceedings, the composition of the arbitral tribunal, challenge to arbitrators, the proceedings before the arbitral tribunal, evidence, interim measures, awards and decisions, time limits for the final award, costs of the arbitration and so on. Of course, the SCC Rules also provide the parties and the arbitral tribunal with a great deal of freedom to agree on a procedure as they see fit.
Where the parties have not agreed on the number of arbitrators, the SCC Institute shall decide whether the arbitral tribunal shall consist of one or three arbitrators, having regard to the complexity of the case, the amount in dispute and any other relevant circumstances. If the arbitral tribunal shall consist of three arbitrators (and if the parties have not agreed otherwise), each party shall appoint one arbitrator and the Board of the SCC Institute appoints the chairperson. If the parties are of different nationalities, the chairperson (or the sole arbitrator) shall be of a different nationality from the parties (unless the parties have agreed otherwise, or the SCC Institute otherwise deems it appropriate). In practice, arbitrators from many different countries act as arbitrators in SCC arbitrations. Also, the Board of the SCC Institute includes nationals from several different countries.
The SCC Rules have been adopted with the aim of ensuring a speedy and efficient proceeding. At the outset, a general rule prescribes that the arbitral tribunal and the parties shall act in an efficient and expeditious manner. Furthermore, under the SCC Rules, the arbitral tribunal shall promptly arrange a management conference with the parties to organise, schedule and establish procedures for the conduct of the arbitration. Immediately after the case management conference, the tribunal shall establish a timetable, including the date for rendering the award. The aim of ensuring speedy and efficient proceedings also underpins several other provisions set out in the SCC Rules, such as article 43, which provides that the final award shall be rendered no later than six months from the date on which the case was referred to the arbitral tribunal, unless the SCC Board decides to extend this time limit upon a reasonable request from the arbitral tribunal or if otherwise deemed necessary. Statistics for 2019 confirm that arbitration under the SCC Rules tends to result in expeditious proceedings: half of the awards were rendered within six to 12 months from the time of registration.
As mentioned, the latest version of the SCC Rules entered into force on 1 January 2017. Key changes made in the latest version of the SCC Rules include the following:
The SCC Rules for expedited arbitration
The SCC framework also allows parties to choose a particular form of expedited arbitral proceedings by agreeing before or after the dispute has arisen that the dispute shall be resolved in accordance with the SCC Rules for Expedited Arbitration. Under these rules, the parties are only allowed to make a limited number of written submissions. In addition, written submissions shall be brief and the time limits for the filing of submissions may not (as a main rule) exceed 15 working days. Furthermore, under the Rules for Expedited Arbitration, the arbitration shall be decided by a sole arbitrator and the time limit for a final award is three months from the date on which the case was referred to the arbitrator. Further, a hearing shall be held only at the request of a party and if the arbitrator considers the reasons for the request to be compelling. In 2019, a majority of the awards rendered under this framework were rendered within three months and only 3 per cent of the awards were rendered after more than six months. 
In 2010, the SCC Institute became one of the first arbitration institutes in the world to offer the appointment of emergency arbitrators. A party that wishes to seek a decision on interim measures may file a request with the SCC Institute to have an emergency arbitrator appointed in accordance with the rules set out in an appendix to the SCC Rules and the SCC Rules for Expedited Arbitration. In such a case, the SCC Board shall seek to appoint an emergency arbitrator within 24 hours of receipt of the application and a decision on interim measures shall be made no later than five days from the date on which the application was referred to the emergency arbitrator under the relevant SCC rule. The emergency decision is binding on the parties when rendered, and by agreeing to arbitration under the SCC Rules the parties thereby undertake to comply with any emergency decision without delay. However, the arbitral tribunal is not bound by the decisions and reasoning of the emergency arbitrator, and the emergency arbitrator’s decision ceases to be binding, for example, if the arbitral tribunal so decides.
Investor treaty disputes
The SCC Rules also include an appendix that sets out provisions that apply specifically to investor treaty disputes (ie, disputes based on a treaty providing for arbitration of disputes between an investor and a state). The SCC Institute is the second largest arbitration institute in the world (after ICSID) for the administration of investment disputes. 
The SCC Platform
From September 2019, all new SCC arbitrations are administered on the ‘SCC Platform’, which is a secure digital platform for communication and file sharing between the SCC, the parties and the tribunal. The SCC itself states that the SCC Platform ‘provides participants with a secure and efficient way of communicating and filing all case materials in the arbitration, such as procedural orders, submissions and exhibits, and will constitute the forum through which the SCC communicates with the parties, counsel and arbitrators throughout the proceedings’.
Moreover, since May 2020, the SCC also offers an ad hoc platform for providing the same secure and efficient communication in ad hoc arbitrations. Notably, the ad hoc platform can be used free of charge for any ad hoc arbitration commenced during the covid-19 outbreak. 
Information and guidance from the SCC Institute regarding the covid-19 pandemic
The outbreak of covid-19 has, of course, brought challenges to many industries, businesses and institutions. Naturally, arbitration is no exception, and participants in arbitral proceedings administered by the SCC Institute have therefore turned to the SCC Institute for guidance and information. The SCC Secretariat of the SCC Institute has in light of this posted some general information and guidance on its website, the content of which will be described below.
First, the SCC Secretariat notes that there is no change to the management of SCC arbitrations. The case management is digitalized since 2013 and the daily operations of the SCC Institute are therefore unaffected by the covid-19 outbreak. Furthermore, the SCC Secretariat notes that from September 2019, all new SCC arbitrations are administered on the SCC Platform (see above). A site on the SCC Platform may also be set up for arbitrations initiated before September 2019 upon request.
Furthermore, the SCC Secretariat states that due to the current travel and meeting restrictions, arbitral tribunals are encouraged to use other means of communication, such as audio- and visual meeting facilities. It is highlighted that arbitral tribunals are expected to manage the proceedings in accordance with established timetables or in accordance with article 23 of the SCC Rules (which provides, inter alia, that the tribunal shall conduct the arbitration in an impartial, efficient and expeditious manner). This guideline is, of course, subject to the fact that illness and other circumstances may prevent the case from continuing as planned.
The SCC Secretariat notes that parties to arbitral proceedings under the SCC Rules are expected to, inter alia, ‘act in an efficient and expeditious manner throughout the proceedings’ and ‘act in the spirit of the rules in all matters not expressly provided for therein’ (see article 2 of the SCC Rules). In light of this, the SCC Secretariat states the following: ‘The COVID-19 outbreak has introduced some practical challenges for parties involved in SCC arbitrations. Parties are however expected to live up to their obligations under the SCC Rules and make efforts to keep to established timetables by, when necessary and deemed possible, for example transferring the arbitration to a fully digital environment, including using audio- and visual meeting facilities in the proceedings going forward.’ Lastly, the SCC Secretariat also notes that ‘each party’s contribution to the efficiency and expeditiousness of the arbitration’ may be relevant when the tribunal apportions the costs of the arbitration between the parties (see article 49(6) of the SCC Rules).
In the authors’ view, the information and guidance of the SCC Secretariat is an important reminder to arbitral tribunals and parties to strive for efficient and expeditious handling of arbitral proceedings under the SCC Rules, despite the current difficulties imposed by the covid-19 pandemic.
Recent case law
The Swedish Supreme Court, Case T 5437-17
A judgment by the Swedish Supreme Court, pronounced on 20 March 2019, has provided further guidance on, inter alia, the application and interpretation of arbitration agreements. The Supreme Court case concerned challenges against an award that had been rendered by an arbitral tribunal in respect of a dispute between a Turkish claimant and a Belarusian respondent. The arbitral proceedings had been administered by the SCC in accordance with the SCC Rules of 2010.
First of all, the Supreme Court reviewed whether the arbitral tribunal had jurisdiction to rule on claims that concerned certain additional works that had been ordered after the agreement that included the relevant arbitration clause had been cancelled. The issue was whether the arbitral tribunal had, in respect of these additional works, decided on an issue that fell outside the scope of the relevant arbitration agreement and whether the award on that basis should be wholly or partly set aside. In deciding on this issue, the Supreme Court made some interesting statements that provide for a fairly extensive application and interpretation of arbitration agreements assessed under the Arbitration Act.
The Supreme Court stated that the scope of an arbitration agreement is to be determined pursuant to the conventional principles for contract interpretation. Further, the Supreme Court stated that the Arbitration Act requires that an arbitration agreement must pertain to a specific legal relationship and expressed that the term ‘legal relationship’ ought to be interpreted taking into account the principles that underpin the New York Convention and that these principles have in foreign case law and international jurisprudence been taken as justification for an expansive interpretation of the arbitration agreement, as well as the New York Convention’s concept of a ‘legal relationship’. The court proceeded to state, inter alia, the following:
After setting out these legal starting points, the Supreme Court made an assessment in casu and found that the arbitral tribunal had not decided on an issue that fell outside the scope of the relevant arbitration clause.
The Supreme Court also reviewed whether the arbitral tribunal had exceeded its mandate or committed a procedural error by not reviewing a legally relevant circumstance that was in dispute between the parties. In this context, the court stated, inter alia, that the effect of a procedural error ought to be of some reasonable importance to the challenging party in order for the challenging party to successfully invoke it. Importance should be related to the part of the arbitral award that may be set aside. As regards the case at hand, the court found that the arbitral tribunal had committed a procedural error by not ruling on the circumstance that was in dispute between the parties and, more precisely, that the arbitral tribunal had failed to take into account that the respondent had objected to the claimant’s assertion that interest should be calculated from a certain point in time. However, the court concluded that the effect of this error had added only a single day as regards the calculation of interest in relation to each relevant invoice and therefore the procedural error had not been of reasonable importance to the respondent. Therefore, the challenging party’s action in this regard was rejected.
Next, the Supreme Court assessed the challenging party’s claim that the arbitral tribunal had committed a procedural error by not giving the challenging party the opportunity to sufficiently argue its case. In this regard, the challenging party referred to the arbitral tribunal’s decisions to dismiss the company’s requests for extension of time for the submission of an expert report and its request that the arbitral tribunal should appoint an independent expert. The court stated that it is the arbitral tribunal that has the best position to assess whether a request for an extension shall be granted or rejected, taking into account the reasons presented by the parties. As a starting point, the decision of the arbitral tribunal on whether to grant an extension should be accepted, unless the decision appears indefensible. As regards the ground relating to the fact that the arbitral tribunal had not appointed an independent expert, the court pointed out that a rejection of a party’s request that the arbitral tribunal itself shall appoint an expert cannot constitute a procedural error, unless otherwise provided by the arbitration agreement. Against the backdrop of these legal starting points, the court rejected the challenging party’s action in this regard.
Last, the Supreme Court assessed whether the arbitral tribunal had committed a procedural error by laying down an arbitral award that, according to the challenging party, was not based on the evidence invoked in the proceedings. In relation to this claim by the challenging party, the court stated that an arbitral tribunal’s assessment of questions concerning burden of proof and evidentiary thresholds are part of the tribunal’s assessment on the merits. Hence, even if the arbitral tribunal had committed an error in any of these respects, it could not result in the conclusion that the arbitral tribunal had acted outside its mandate, nor that it had committed a procedural error. Hence, the challenging party’s action was rejected also in this regard.
The Swedish Supreme Court, Case 796-18
In a judgment pronounced on 30 April 2019, the Swedish Supreme Court partially set aside an arbitral award. The challenging party had claimed that the tribunal had committed a procedural error by deviating from its previous position on the interpretation of a certain clause in the agreement in dispute. The previous position had been set out in a procedural order and the parties were not informed of the deviation in advance and were not given the opportunity to further argue its case on the basis that the Tribunal considered to amend its position as set out in the procedural order.
The Supreme Court ruled that the tribunal had committed a procedural error that likely affected the outcome of the case, and that important principles of legal certainty had been set aside by not allowing the challenging party to further argue its case based on the tribunal considering to amend its position on the issue of interpretation of the relevant clause. The Supreme Court also noted that the challenging party could not be blamed for this procedural error. In light of this, the Supreme Court partially set aside the award.
Svea Court of Appeal, Case ÖÄ 7709-19
As a general rule, arbitral awards are enforceable in Sweden. However, a recent decision from the Svea court of appeal in Stockholm has shed light on issues related to enforcement of arbitral awards against sovereign states.
In short, the facts of the case and the issues in dispute were as follows. A dispute between a group of investors and the Republic of Kazakhstan resulted in an award rendered by a SCC tribunal pursuant to which Kazakhstan was ordered to pay approximately US$500,000,000 to the investors. Kazakhstan challenged the award and argued that the award should be set aside, but the challenge action was denied by the court of appeal. The investors applied to the Swedish enforcement agency to have the award enforced against Kazakhstan. The enforcement agency accordingly seized assets in, inter alia, a bank account in a Swedish bank.
Kazakhstan, as well as Kazakhstan’s national bank, both appealed the decision of the Swedish enforcement agency to seize the assets, inter alia on the ground that the assets were part of a non-commercial national fund belonging to Kazakhstan’s national bank and thus that the assets were protected by state immunity as set out in articles 19(c) and 21.1(c) of the United Nations Convention on Jurisdictional Immunities of States and Their Property. This appeal was first adjudicated by the district court, which denied the appeal.
The decision of the district court was in turn appealed to the Svea court of appeal, which, in short, reasoned as follows on the issue of state immunity. The aforementioned UN convention had not entered into force. However, the convention is generally considered to codify customary public international law on issues regarding state immunity and the articles of the convention should therefore be the starting point in the assessment of the issues in dispute. Accordingly, article 19(c) of the convention provides that the award could only be enforced against Kazakhstan if ‘it has been established that the property is specifically in use or intended for use by the state for other than government non-commercial purposes’. Furthermore, the court noted that article 21. 1(c) of the convention provides that ‘property of the central bank or other monetary authority of the State’ should explicitly be considered to not be property ‘specifically in use or intended for use by the state for other than government non-commercial purposes’ pursuant to article 19(c) of the convention.
The court of appeal found that the seized assets in dispute did belong to the national bank of Kazakhstan. Furthermore, the court of appeal found that the national bank of Kazakhstan must be deemed to be a ‘central bank’ in the meaning of article 21.1(c) of the convention. Moreover, the court of appeal found that article 21.1(c) of the convention must be interpreted in such a way that the seized assets in question were protected by state immunity already in its capacity as assets belonging to a central bank. Accordingly, Kazakhstan’s appeal was granted and the seizure order was revoked.
 See the SCC Institute’s website, available at https://sccinstitute.com/statistics/investment-disputes-2019/.
 See the SCC Institute’s website, available at https://sccinstitute.com/statistics/investment-disputes-2019/.
 See the SCC Institute’s website, available at https://sccinstitute.com/scc-platform/ad-hoc-platform/.
 See the SCC Institute’s website, available at https://sccinstitute.com/about-the-scc/news/2020/covid-19-information-and-guidance-in-scc-arbitrations/.
- Under the previous Arbitration Act, the issue of the arbitrators’ jurisdiction could be subject to several parallel proceedings in a way that the government considered unsatisfactory. The revised Arbitration Act includes new rules according to which a decision from the arbitrators that they have jurisdiction to resolve the dispute may be appealed to the court of appeal within 30 days. Furthermore, the Arbitration Act now includes a procedural impediment that bars a party from filing a separate request for a declaratory judgment with a general court after the arbitral proceedings have been initiated, unless the parties agree that the issue of jurisdiction shall be subject to such court proceedings.
- The Arbitration Act provides that the arbitrators must be impartial. This impartiality requirement was set out also in the previous Arbitration Act and the preparatory works relating to that Act provided that this requirement includes an assessment of whether an arbitrator is independent. However, since the Model Law sets out both an impartiality and an independence requirement, and since the government has concluded that foreign parties may be confused as to whether independence is included in the assessment notwithstanding the absence of an explicit requirement to such effect, the term ‘independent’ has now been added to the relevant legal provision.
- The previous Arbitration Act lacked provisions governing the possibility to consolidate two or more arbitrations. The revised Arbitration Act now includes consolidation rules. According to these rules, several arbitrations may be consolidated if the parties consent thereto, the arbitrators deem that the handling of the proceedings will benefit from a consolidation and the same arbitrators have been appointed in the arbitrations.
- Contrary to several other arbitration frameworks, such as the Model Law and the SCC Rules, the previous Arbitration Act did not include any explicit provisions concerning applicable substantive law. The following has now been explicitly set out in the Arbitration Act:
- It has been clarified through an explicit provision that the dispute shall be resolved in accordance with the substantive laws or the set of rules agreed upon by the parties. According to statements in the preparatory works, the parties shall also be able to choose to have their dispute resolved under a non-governmental framework such as the Principles of European Contract Law.
- For the purposes of further clarification, the revised Arbitration Act includes a provision that provides that an agreement that designates a country’s law shall be understood as a reference to that country’s substantive law and not to its rules governing conflicts of law, unless otherwise prescribed pursuant to the parties’ agreement.
- The previous Arbitration Act did not contain any explicit rule governing the situation where the parties have not agreed on the applicable substantive law. The revised Arbitration Act, however, stipulates that if the parties have not entered into such an agreement, the arbitrators shall decide which substantive law shall be applied. The revised Arbitration Act does not, however, direct the arbitrators as to how to reach such a decision.
- An award may be set aside if the arbitrators have exceeded their mandate. In the previous Arbitration Act, it was not required that the excess of mandate should have affected the outcome of the arbitration in order for the award to be set aside. The relevant rule has now been complemented with a requirement to the effect that it must also be probable that the excess of mandate has affected the outcome of the arbitration.
- Furthermore, the time limit for filing a request for the setting aside of an award has been shortened from three to two months. The purpose of this amendment is to ensure that arbitration is indeed a speedy and efficient form of dispute resolution and to put the legislation closer in line with the law in, for example, France and England.
- The revised law increases the opportunity to use the English language during the taking of evidence in the context of the challenge proceedings in court. This is a concrete example of how the Swedish government is striving to further facilitate litigation in Sweden for foreign parties. Under the amended law, the court may take oral evidence in English (ie, parties and witnesses may be allowed to testify in English without interpretation into Swedish). Parties may submit written evidence in English to Swedish courts (this was the case already under the previous Act) and the Supreme Court has stated that such evidence often ought to be accepted.
- The revised Arbitration Act introduced a requirement that parties seeking to appeal a court of appeal’s judgment in a challenge proceeding must obtain permission to appeal from the Swedish Supreme Court. In challenge proceedings, the court of appeal may grant permission for its judgment to be appealed to the Supreme Court, if it is considered that the adjudication process in Sweden at large is well served by a precedent from the Supreme Court. Under the previous Act, no permission to appeal was required from the Supreme Court in these cases and the government had noted that this meant that the Supreme Court was unable to limit its assessment to the very issue that is deemed necessary to clarify through a precedent from the highest court. Therefore, the revised Arbitration Act now includes a requirement for permission to appeal.
- introduction of a summary procedure, under which the tribunal may decide one or several issues of fact or law without necessarily undertaking every procedural step that might otherwise be adopted for the arbitration;
- provisions regarding joinder of additional parties under which a party to an arbitration may request that the Board of the SCC Institute join one or several additional parties to the arbitration;
- provisions that allow parties to make claims arising out of or in connection with more than one contract in a single arbitration;
- provisions regarding consolidation of arbitrations under which a newly commenced arbitration may be consolidated with a pending arbitration;
- provisions regarding the use of administrative secretaries, which regulate the relationship between the secretaries, parties and tribunal;
- provisions that allow arbitrators to order a claimant (or counterclaimant) to pay security for costs and to stay or dismiss the party’s claims in whole or part if the party fails to provide security; and
- provisions emphasising the standard of efficiency and expeditiousness.
- The term ‘legal relationship’ does not only cover those rights and obligations that have been set forth in an original agreement. Subsequent legally relevant circumstances, which alter the content of the agreement, fall within the scope of the term and thereby within the scope of application of an arbitration clause set out in the original agreement.
- In other cases, the ground for a party’s case could fall outside the scope of the arbitration clause.
- However, legally relevant facts outside the contractual relationship may be deemed to fall inside the scope of application of the arbitration clause. In this context, the Supreme Court referred to a previous Supreme Court case and noted that, in that case, a non-contractual ground for the requested order had been deemed so closely related to the other grounds for the request that the former ground also was considered covered by the arbitration clause.
- The determination of whether a dispute is covered by an arbitration agreement may, at times, encompass the arbitral tribunal conducting an in-depth analysis of the parties’ relationship. In these cases, there is reason to assume that parties to a commercial relationship strive to have disputes within the scope of their relationship settled by one single forum, because other solutions would contain a risk of time delays, increased costs and contradicting decisions on matters that are connected to one another.
- When, in a challenge proceeding, a court is tasked with reviewing the arbitral tribunal’s decision on its jurisdiction, regard should be made to the fact that, typically, it is the arbitral tribunal that is best positioned to determine the issue of its own jurisdiction. This means that the starting point for the court’s review should be that the arbitral tribunal’s interpretation and evaluation of evidence is correct.