THE COURT Councilors of the Court of Appeal Ulrika Ihrfelt and Mattias Pleiner and former Court of Appeal assessor Josefin Backman, referee SPEAKER AND PROTOCOL KEEPER Specialist rapporteur Lina Wogel PARTIES Applicant Villa Europa Sp. z o. o., 016408763 ul. Sienna 64 00-820 Warsaw Poland Deputy: Krzysztof Sienicki Lipowa 1/Topolowa 19 05-807 Podkowa Lesna Poland. Counterpart Bjorn Johansson, 19631108-9012 Birger Jarlsgatan 104 114 20 Stockholm Representative: Attorneys Thomas Ekenberg and Michael Erici Ekenberg & Andersson Law Firm Stockholm AB Box 7500 103 92 Stockholm MATTER Recognition and Enforcement of Foreign Arbitral Awards; now ask for rejection Villa Europa Sp. zo. o. (Villa Europa) has applied for the recognition and enforcement of an arbitral award to be delivered by the Pan-European Court of Arbitration on December 6, 2021 in Warsaw, Poland. Bjorn Johansson has contested the application. The parties have requested compensation for legal costs. Bjorn Johansson has argued that there are reasons for the Court of Appeal to obligate Krzysztof Sieniki ati, together with Villa Europa, to compensate Bjorn Johansson for his court costs in accordance with ch. 18, o and 700 of the Code of Procedure. Krzysztof Sieniki has denied that there are such reasons. A question has arisen as to whether Villa Europa's application should be rejected. After presentation, the Court of Appeal considers the following DECISION (to be announced 2024-02-15) 1. The Court of Appeal rejects that of Villa Europa Sp. zo. o. submitted application. 2. Villa Europa Sp. zo. o. shall reimburse Bjorn Johansson's court costs with SEK 250,000 plus interest on the amount according to Section 6 of the Interest Act from the date of this decision until its payment takes place. The amount refers to attorney's fees. The reasons for the decision Legal starting points From 53 of the Arbitration Act (1999:110) (the Arbitration Act) it appears that a foreign arbitration award based on an arbitration agreement must be recognized and enforced in Sweden unless otherwise provided by 54-00 55 Asking about such a judgment as referred to in Section 53 of the Arbitration Act is a necessary procedural requirement in cases of recognition and enforcement. The court must therefore examine ex officio if it is a question of a (foreign) arbitration award. It is up to the applicant to demonstrate that this is the case. (See NJA 2017 p. 198 p. 11 and 14.) The question of whether it is a judgment according to Section 53 of the Arbitration Act must in principle be decided according to the legal order that applies to the arbitration or would have applied to it if it had been an arbitration. It is up to the Court of Appeal to try to find out the content of the applicable legal order. If the order of priority cannot be determined or its content cannot be clarified, the question may be tried based on Swedish law, however, taking into account what may have been expressed in various foreign legal sources. If an internationally accepted opinion exists, it should be followed, as long as it harmonizes reasonably well with the Swedish legal system. (See NIA 2017 p. 198 p. 12) Thus, the question of whether this case is an arbitral award must be decided in the first place in accordance with Polish law, since the filed document purports to be an arbitral award delivered in Warsaw. Poland has ratified the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). The Court of Appeal therefore assumes that internationally accepted principles regarding the application of the convention are part of Polish law. The concept of arbitration is not defined in the New York Convention. In foreign practice, however, what could be called fabricated arbitrations, i.e. documents that look like real arbitrations but that have come about through a scam procedure, are considered not to constitute real arbitrations in the sense of the New York Convention. A fabricated arbitration award entered into with a fraudulent purpose is therefore not to be considered an arbitration award at all. (See Born, International Commercial Arbitration, 3rd ed., 2021, pp. 3165 f. and pp. 3185 f. with references.) The legal status of the act invoked The investigation Villa Europa has relied on a certified copy of the document allegedly constituting an arbitration award, drawn up in Polish, and a translation of the document into Swedish. Furthermore, the company has submitted a certified copy of the parties' agreement with an arbitration clause. Bjorn Johansson has argued that the act relied on by Villa Europa is not a real arbitration verdict. In support of this objection, Bjorn Johansson has essentially suggested that Villa Europa set up its own arbitration court where the company tried its own claim against him, and then apply for enforcement of the alleged arbitration award. Bjorn Johansson further claims that this action constitutes an elaborate fraud attempt on the part of Villa Europa. Bjorn Johansson has submitted an extensive investigation in support of the fact that it is not a question of a real arbitration award. The evidence mainly focuses on the circumstances surrounding the Pan-European Court of Arbitration in Warsaw and the institute's relationship to the Villa Europa parties' arbitration agreement and the circumstances surrounding Villa Europa's underlying payment claims against Biden Johansson and the design and content of the arbitration award. The Pan-European Court of Arbitration and its relation to Villa Europa. | --------------------------------------------------------------------------------------------------- The Court of Appeal notes that it is undisputed between the parties that it was Villa Europa that registered the arbitration institute's website. The company has explained this by saying that the development and registration of websites is part of its business. According to an investigation submitted by Bjorn Johansson, the website was registered on September 28, 2021. The Court of Appeal notes that the website was thus only registered after the parties had entered into the agreement that Villa Europa believes was the basis for the arbitration board's jurisdiction. Bjorn Johansson has submitted photographs from the address given in the application to the Pan-European Court of Arbitration in Warszaw. From these it appears that neither on the facade of the property nor in the gate is there anything to indicate that an arbitration court would have any activity there. Villa Europa has explained this by saying that it is forbidden to place shooters or other information on the facade of the building in consideration of the historical value in the center of Warsaw. It has also emerged that the arbitral tribunal later changed its address to a post office box in Ukraine, but not whether it has an office and, if so, where it is located. In light of the circumstances reported above, the Court of Appeal finds that there is reason to doubt whether the Pan-European Court of Arbitration exists at all. The parties' arbitration agreement The circumstances surrounding the parties' arbitration agreement provide some support for Bjorn Johansson's objection that it is not a real arbitration award. Villa Europa has invoked an agreement signed by Bjorn Johansson on June 25, 2021. Bjorn Johansson has submitted a draft agreement that he signed on the same day but which partly has different content, including in the form of another arbitration clause. Both documents are produced by Villa Europa. The Court of Appeal notes that in the agreement invoked by Villa Europa, Bjorn Johansson's signature is found only on the last page of the agreement, while Villa Europa has signed all pages, including the page where the arbitration clause referring to the Pan-European Court of Arbitration is found. These conditions are compatible with Bjorn Johansson's claim that the agreement invoked by Villa Europa has been manipulated afterwards. Villa Europa has, even during the processing of the case, after pointing out from Bjorn Johansson, changed the information about the date of the conclusion of the arbitration agreement; initially, Villa Europa claimed that the arbitration agreement was entered into on July 24, 2020, which is also stated in the cited arbitration award. In connection with this, Villa Europa has also submitted a supplementary decision from the arbitration court. The supplementary decision is dated the same day as the judgment. Villa Europa's underlying payment requirements Villa Europa's claim means that the parties entered into an agreement which entails a payment obligation for Bjorn Johansson of approximately 12,400 euros because he, about a year earlier, gave a lecture at an academic webinar arranged by Villa Europa and that Villa Europa recorded the lecture, edited the recording and published it on Youtube. Villa Europa must also have developed a computer program for this purpose. The Court of Appeal finds it unlikely that a researcher would enter into an agreement on those terms. It has also emerged that similar demands have been made by Villa Europa against around thirty researchers in Europe and that in any case several of these have contested the demands with the same objections as Bjorn Johansson. The design and content of the arbitration award The Court of Appeal notes that the wording of several of the points in the judgment are unclear as regards the more detailed meaning of the obligation. Even otherwise, the arbitration award gives the impression of having been written by a person who does not have the competence that an arbitrator can be expected to have. The Court of Appeal considers that the design and content of the referred arbitration award warrants questioning whether it is the result of a real arbitration procedure. The Court of Appeal's summary assessment As previously established, it is Villa Europa that must demonstrate that its application relates to an arbitration within the meaning of the Arbitration Act. Through the investigation in the case, remarkable and troubling circumstances have emerged for which Villa Europa has not provided any reasonable explanations. In these circumstances, the Court of Appeal considers that Villa Europa has not shown that it is an arbitration award within the meaning of the Arbitration Act. Villa Europa's application must therefore be rejected. Legal costs As Villa Europa's application is to be rejected, the company must compensate Bjorn Johansson for his legal costs. Bjorn Johansson has claimed compensation of SEK 324,625. The amount refers to attorney's fees and corresponds to 92.75 hours of work according to submitted cost accounts. Villa Europa has not accepted any amount as reasonable in and of itself. The Court of Appeal notes at the outset that the case has been going on for a long time and that the correspondence and the investigation have become relatively extensive. The case is one of three cases in the Court of Appeal where Villa Europa applied for recognition and enforcement of foreign arbitration awards. Bjorn Johansson's counsel is also counsel in one of the other two cases. The circumstances and the investigation have been largely the same in that case as in previous cases. Bjorn Johansson, after the Court of Appeal informed him that there was no need for further correspondence in the case, submitted several opinions without to have been submitted thereto. Against this background, the Court of Appeal decides that Bjorn Johansson shall be reimbursed for his court costs with a reasonably considered SEK 250,000 in respect of attorney's fees. Bjorn Johansson has stated that due to what he brought forward about Villa Europa and Krzysztof Sienicki, as well as what he showed regarding Villa Europa's cited documents, agreements and the alleged arbitration award, there are reasons to oblige Krzysztof Sienicki, together with Villa Europa, to reimburse Bjorn Johansson's legal costs in in accordance with ch. 18 Sections 6 and 7 of the Code of Procedure. The Court of Appeal has found that Villa Europa has not shown that it is an arbitration award within the meaning of the Arbitration Act. However, this does not mean that it has been shown that Villa Europa has made claims that the company has realized are unfounded or that there has otherwise been such action that constitutes a prerequisite for the imposition of joint and several payment obligations. HOW TO APPEAL, see Appendix A Appeal no later than 14-03-2024 A trial permit is not required. Lina Wogel The protocol presented