PRACTICAL LAW
MULTI-JURISDICTIONAL GUIDE 2012/13
DISPUTE RESOLUTION
VOLUME 1
The law and leading lawyers worldwide
Essential legal questions answered
in 32 key jurisdictions
Rankings and recommended
lawyers in 90 jurisdictions
Analysis of critical
legal issues
AVAILABLE ONLINE AT WWW.PRACTICALLAW.COM/DISPUTE-MJG
MULTI-JURISDICTIONAL GUIDE 2012/13
DISPUTE RESOLUTION
Sweden
Mattias Göransson and Kristoffer Löf*
www.practicallaw.com/1-520-1031
Mannheimer Swartling
MAIN DISPUTE RESOLUTION METHODS
1. What are the main dispute resolution methods used in your
jurisdiction to settle large commercial disputes?
Large commercial disputes are in most cases resolved through
arbitration. Resolving such disputes through court litigation is
rare. The most notable exceptions from this general trend are
IP infringement cases (and other non-contractual commercial
disputes) and cases where banks are involved, which are often
resolved through court litigation.
COURT LITIGATION
Limitation periods
2. What limitation periods apply to bringing a claim and what
triggers a limitation period?
The running of the limitation period is interrupted by the following:
„„
„„
„„
The debtor offers payment, makes payment of interest
or principal, or otherwise acknowledges the claim of the
creditor.
The debtor receives from the creditor a demand in writing or
other written reminder in respect of the debt.
The creditor commences legal proceedings or otherwise
pleads the claim against the debtor in any court, before the
Swedish Enforcement Authority (Kronofogdemyndigheten),
or in arbitration proceedings, bankruptcy or insolvent
liquidation proceedings, or in negotiations in respect of
judicial composition.
Where the limitation period is interrupted through acknowledgment,
demand or reminder, a new limitation period runs from the day of
the interruption. Where the limitation period is interrupted through
the commencement of legal proceedings or otherwise through the
Court structure
3. What is the structure of the court where large commercial
disputes are usually brought? Are certain types of dispute
allocated to particular divisions of this court?
General courts
Commercial disputes are in general dealt with in the courts of
general jurisdiction. These courts adjudicate commercial cases
which have not expressly been made subject to the jurisdiction
of exclusive jurisdiction (also referred to as special courts (see
below, Exclusive jurisdiction courts). The jurisdiction of the
exclusive jurisdiction courts is limited to matters listed under the
relevant statute.
The courts of general jurisdiction form part of a three-tiered
system:
„„
District courts (tingsrätter), of which there are approximately
50.
„„
Six Courts of Appeal (hovrätter).
„„
The Supreme Court (Högsta domstolen).
District courts vary greatly in size. The smallest courts have only
a few legally trained judges whereas the largest, the Stockholm
District Court, is served by about 50 judges. The smallest courts
naturally have limited experience in large commercial cases,
since most commercial disputes are handled by the courts in the
areas where the large companies are located.
Exclusive jurisdiction courts
It is not uncommon that certain cases can only be referred to
certain courts. Most notably:
„„
„„
Cases regarding patents or infringement of community trade
marks (CTMs) are subject to exclusive jurisdiction of the
Stockholm District Court.
Cases regarding maritime matters are subject to exclusive
jurisdiction of seven district courts appointed as Maritime
Courts.
The answers to the following questions relate to procedures that
apply in district courts.
© This article is part of the Dispute Resolution 2012/13 multi-jurisdictional guide
and is reproduced with the permission of the publisher, Practical Law Company.
Country Q&A
Statutes of limitation form part of substantive law. If Swedish
substantive law applies, the general limitation period is ten years
starting from the accrual of the right in question. Although debt
claims are generally subject to the ten-year limitation period,
a shorter period may apply. For example, insurance indemnity
claims are subject to a three-year limitation period starting from
when the party has discovered that the claim could have been
made.
pleading of a claim, a new limitation period generally runs from the
day of the publication of a judgment or a final decision, or from the
day on which the legal proceedings are in any other way concluded.
MULTI-JURISDICTIONAL GUIDE 2012/13
DISPUTE RESOLUTION
Rights of audience
Insurance
4. Which types of lawyers have rights of audience to conduct
cases in courts where large commercial disputes are usually
brought? What requirements must they meet? Can foreign
lawyers conduct cases in these courts?
Rights of audience/requirements
A party is entitled to conduct its case through any counsel not
deemed unsuitable by the court. The requirement of suitability is
low and the counsel need not be a lawyer. In practice, however,
parties to large commercial disputes normally conduct their
cases through a lawyer who is qualified by, and a member of,
the Swedish Bar Association (Sveriges Advokatsamfund). Such
a lawyer is called advokat (advokater in plural) and this title is
exclusively reserved for members of the Bar Association.
In relation to rights of audience/requirements in class actions,
see Question 21.
Most insurance schemes for companies cover legal expenses.
However, the cap is often so low that the indemnification only covers
a fraction of the costs involved in a large commercial dispute.
COURT PROCEEDINGS
7. Are court proceedings confidential or public? If public, are
the proceedings or any information kept confidential in
certain circumstances?
Court proceedings are public. This applies to all briefs and other
documents (for example, documents submitted as evidence by a
party) filed with the court, all hearings, and decisions and judgments
made by the court. However, documents submitted as evidence
that contain trade secrets may be protected as confidential by the
court on a party’s request. If it can be assumed that information to
which such confidentiality applies will be presented at a hearing, the
public can be barred from attending the hearing.
Foreign lawyers
There is no requirement to retain local counsel, but counsel must
speak Swedish as court proceedings are in Swedish and counsel
cannot use an interpreter.
FEES AND FUNDING
Country Q&A
5. What legal fee structures can be used? Are fees fixed by law?
In general, a lawyer is free to agree on any legal fee or fee structure
with the party he represents. However, an advokat is bound by the
rules adopted by the Bar Association, which provide that all fees
charged by an advokat must be reasonable. Fees are normally
charged on the basis of several factors such as the importance
and difficulty of the matter, the time spent, the responsibility of
the advokat and the outcome.
Contingency fees are generally prohibited. In addition, an advokat
cannot charge his client a fee in excess of the amount claimed as
legal costs from the court, unless the advokat has done additional
work for the client that for some reason could not be included in
the costs sought from the court.
In relation to class actions see Question 21.
6. How is litigation usually funded? Can third parties fund it? Is
insurance available for litigation costs?
Funding
Litigation is usually funded by the party itself. If the party’s
counsel is an advokat, that advokat cannot fund the litigation.
Other than that, there is no general restriction against third party
funding, although the phenomenon is still uncommon in court
litigations.
If the party is successful, the cost of litigation is recoverable from
the other party (see Question 22).
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8. Does the court impose any rules on the parties in relation to
pre-action conduct? If yes, are there penalties for failing to
comply?
Generally, the courts do not impose any rules on the parties in
relation to pre-action conduct.
9. What are the main stages of typical court proceedings?
Starting proceedings
Judicial proceedings start with the claimant submitting a written
summons application to the district court. A summons application
must comply with certain requirements provided by law. For example,
a summons application must set out a distinct claim and a detailed
account of the material facts relied on as the basis of the claim,
among other things. If a summons application does not comply with
those requirements or is otherwise incomplete, the court must direct
the claimant to remedy the defects within a time limit set by the
court (normally two weeks). If the direction is not complied with
and the application is so incomplete as to be unfit for service as the
basis for legal proceedings, the case is dismissed. Dismissal will
also occur if it is obvious that the case cannot proceed because of a
procedural bar. If the action is otherwise manifestly unfounded (as a
matter of law) the court can deliver a judgment against the claimant
without serving the summons application on the defendant. Thus
unnecessary lawsuits can be avoided.
Proceedings are considered commenced when the summons
application has been received by the court. The time of the
commencement of proceedings is important in many respects,
for example, for the purposes of statutory limitation periods and
lis pendens.
Notice to the defendant and defence
When the court is satisfied that the summons application meets
the stipulated requirements as to form and content and is not
manifestly unfounded, the court issues a summons requiring the
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MULTI-JURISDICTIONAL GUIDE 2012/13
DISPUTE RESOLUTION
defendant to respond to the claim within the time limit set by
the court (normally two to four weeks from when the summons
was served on the defendant). The summons must be served on
the defendant. If the defendant fails to submit a statement of
defence with the court in a timely manner, a default judgment
may be rendered against the defendant.
Subsequent stages
The claimant is normally ordered to submit a reply to the
statement of defence and the defendant subsequently submits
a rejoinder to the reply. In general, the court will then request
the parties to appear at a pre-trial hearing. The purpose of the
pre-trial hearing is to clarify the basis for the trial. If possible, the
preparation of the case for the main hearing should be concluded
at the pre-trial hearing. If necessary, the court can order the
continuation of the preparation through an exchange of briefs.
(The court is also under a duty to investigate whether there are
possibilities for an out-of-court settlement during the pre-trial
hearing (see Question 31).)
At the pre-trial hearing, the court, together with the parties, sets
a date for the main hearing. At the main hearing, the parties
present their respective case and any written evidence. After
that, any witnesses or experts are examined, cross-examined and
re-examined. Finally, the parties present their closing arguments
and submit their respective statement on costs.
After the main hearing, the court determines the case and renders
a written judgment. The judgment is normally delivered within
two to six weeks of the main hearing.
If no witnesses are to be heard and the parties agree, the court
can determine the case and issue a written judgment without a
main hearing.
If a party has made an objection, the court must issue a separate
decision thereon as soon as possible. If the court is contemplating
dismissing the case based on the objection raised, the other
party is always invited to reply to the objection. Both parties are
also invited to submit statements if the court is contemplating
dismissing the case on its own motion.
11.Can a defendant apply for an order for the claimant to provide
security for its costs? If yes, on what grounds?
If the claimant is domiciled in a non-EU or EFTA member state, the
court will, on the application by the defendant, order the claimant
to provide security for the defendant’s litigation costs. The security
must comprise either a pledge or a surety. The defendant must
apply for security when he makes his first appearance.
12.What are the rules concerning interim injunctions granted
before a full trial?
Availability and grounds
An interim injunction can be obtained. For example, such an
injunction can prohibit the other party from taking certain action
subject to a default fine.
To obtain an interim injunction, whether interlocutory (see below)
or not, the claimant must:
„„
„„
INTERIM REMEDIES
10.What actions can a party bring for a case to be dismissed
before a full trial? On what grounds must such a claim be
brought? What is the applicable procedure?
A case can be dismissed before a full trial for a number of
reasons, most notably that:
„„
The case is res judicata or subject to lis pendens.
„„
The court lacks jurisdiction to try the case.
The court must, on its own motion, consider whether the case is
res judicata or subject to lis pendens as soon as any reason for that
arises. A party can also raise an objection in this respect at any
time during the proceedings. As regards a lack of jurisdiction, the
court must consider whether it has jurisdiction on its own motion
only in cases where another court may have exclusive jurisdiction.
In all other cases (for example, when the underlying contract
contains an arbitration clause), a party must assert that the court
lacks jurisdiction. A party who wishes to raise this objection must
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INFORMATION
„„
Show that it is reasonable to believe that he will succeed in
obtaining a judgment in his favour. However, the claimant
is not required to provide full proof of his claim at this
preliminary stage.
Show that the defendant is endangering the enforcement
of a future judgment in favour of the applicant through
improper actions.
Provide security for any possible damage that may be
caused to the defendant by the injunction (should the
claimant fail to obtain a final judgment in its favour, the
claimant is strictly liable for any damage caused to the
defendant due to the injunction). This is normally done by
either a bank guarantee or surety.
Prior notice/same-day
Once an application for an interim injunction is filed with the
court, the court normally informs the defendant about the
application and requests the defendant to reply. However, the
claimant can apply for an interlocutory injunction if he can
establish that an immediate injunction is necessary to protect its
interests. In these circumstances, an interlocutory injunction may
be granted immediately, and without notice to the defendant. The
court then informs the defendant about the application and the
court’s decision to grant an interlocutory injunction and requests
the defendant to reply. After receiving the defendant’s reply, the
court will make a new decision to either uphold, amend or reverse
its initial decision to grant an interlocutory injunction.
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Country Q&A
If a party fails to appear at the pre-trial hearing or the main
hearing, a default judgment may be rendered if requested by
the appearing party. If both parties fail to appear at the pre-trial
hearing or main hearing, the case is dismissed.
do so at first appearance. If a party has a legal excuse for not
raising the objection on time, the party must present it as soon as
possible after the excuse has ceased to exist. A party who fails to
object within this time limit loses its right to object.
MULTI-JURISDICTIONAL GUIDE 2012/13
DISPUTE RESOLUTION
Mandatory injunctions
„„
In addition to prohibitory interim injunctions to stop a defendant
from doing something, mandatory interim injunctions to compel
a defendant to do something are, in principle, available. However,
the courts are reluctant to issue mandatory interim injunctions
and it is only done in exceptional circumstances.
13.What are the rules relating to interim attachment orders
to preserve assets pending judgment or a final order (or
equivalent)?
Agree to a declarative order (for example, that the parties
are bound by an agreement or that the claimant is the
lawful owner of the property).
By law, damages are just compensatory and not punitive.
However, the parties can agree that penalties can be awarded
as a consequence of, for example, a breach of contract. Under
certain IP and labour legislation, moral damages, which may be
viewed to have punitive elements, can be awarded. However, the
amounts awarded under such statutes are typically rather modest.
EVIDENCE
Availability and grounds
An interim attachment of the defendant’s property can be
obtained, in general up to the amount of the amount in dispute.
To obtain an interim attachment order, the same conditions must
be fulfilled as for obtaining an interim injunction (see Question
12, Availability and grounds).
Prior notice/same-day
This is the same as for interim injunctions (see Question 12, Prior
notice/same-day).
Main proceedings
An interim attachment order can be granted in support of
substantive proceedings that are taking place in the courts of an
EU or EFTA member state.
Country Q&A
Preferential right or lien
An attachment does create a preferential right in favour of the
plaintiff to some extent. However, the preferential right created is
not superior to other preferential rights recognised by law and a
third party can thus in some circumstances also request that the
attached property be seized in favour of the third party.
Disclosure
16.What documents must the parties disclose to the other parties
and/or the court? Are there any detailed rules governing this
procedure?
There is no compulsory disclosure; the claimant is free to choose
which evidence it wishes to submit in support of its case.
On request by a party, the court may order another party to
produce to the court and the requesting party documents in its
possession that can be assumed to be of importance as evidence
in the case. For the court to order a party to produce documents,
the party seeking production must identify the document(s) to be
produced. To what extent the documents need to be identified
is not clear and is continuously subject to discussion among
scholars. According to the Swedish Supreme Court, a party can
request documents belonging to a certain defined category of
documents, provided that it is clearly specified what the party
intends to prove with the produced documents.
If the claimant fails to obtain a final judgment in its favour, the
claimant is strictly liable for any damage caused to the defendant
by the interim attachment order.
There are no detailed rules governing this procedure. In general,
the party requesting production of documents files a request with
the court. The other party will be provided with an opportunity
to respond to the request. Further briefs may follow if the court
finds it appropriate.
Security
See also Question 17, Other non-disclosure situations.
This is the same as for interim injunctions (see Question 12).
Privileged documents
14.Are any other interim remedies commonly available and
obtained?
17.Are any documents privileged? If privilege is not recognised,
are there any other rules allowing a party not to disclose a
document?
There are separate provisions concerning precautionary measures
in some fields, for example, in relation to patents.
Privileged documents
FINAL REMEDIES
Attorney-client privilege. A party cannot be ordered to produce
documents that are protected by the attorney-client privilege. The
attorney-client privilege covers communications with external
counsel only to the exclusion of in-house counsel.
Damages as a result
15.What remedies are available at the full trial stage? Are
damages just compensatory or can they also be punitive?
At the full trial stage, the court may order the defendant to:
„„
Pay damages.
„„
Carry out specific performance.
FOR MORE
INFORMATION
Trade secrets. A party cannot be ordered to produce documents
that include trade secrets, except in exceptional circumstances.
Trade secrets comprise information on business or management
matters relating to the activities of a company that the company
keeps secret and which, if disclosed, will cause competitionrelated damage.
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Private notes. Any notes prepared exclusively for private purposes
are protected from disclosure unless an extraordinary cause
for their production is found to exist. Written communications
between the party and a relative are also protected from
disclosure.
The “without prejudice” principle is not recognised as such.
However, an advokat cannot, without the consent of the opposing
party, disclose an offer of settlement made by the opposing
party in settlement discussions. Moreover, if submitted, the
court will not attach much evidentiary relevance (if any at all)
to a document that was prepared without prejudice for the sole
purpose of facilitating a settlement.
Role of experts
The role of an expert is to provide independent advice to the
court. As a rule, the expert must submit a written report. After
the report is filed with the court it must be held available to the
parties. The expert will also be examined under oath either if a
party so requests, or if the court finds it necessary. An expert will
be heard in the same way as a fact witness.
Right of reply
There is a right to cross-examine an expert. There is also a right to
appoint an expert to respond to statements made by another expert.
Fees
The party that has appointed the expert pays his fees.
Other non-disclosure situations
Considerations of proportionality may be relevant to deny a
request for production of documents. Following the principle
of proportionality, the requesting party’s interest to obtain
the documents should be balanced against the other party’s
legitimate interest in not having to produce them (for example,
because that would be unduly burdensome).
APPEALS
20.What are the rules concerning appeals of first instance
judgments in large commercial disputes?
Examination of witnesses
Which courts
18.Do witnesses of fact give oral evidence or do they just submit
written evidence? Is there a right to cross-examine witnesses
of fact?
A party can generally appeal any final judgment of a district
court to the Court of Appeal in whose circuit the district court is
located. Court of Appeal decisions are appealable to the Supreme
Court.
Grounds for appeal
Oral evidence
„„
It is specifically authorised by statute.
„„
The witness cannot be examined before court.
„„
„„
Leave to appeal is required in all commercial cases. Leave to
appeal is granted where:
„„
„„
It is justifiable considering the costs and inconvenience a
court examination would involve, the usefulness of such an
examination, the importance of the witness’s statement and
all other circumstances.
It is accepted by the parties and otherwise not manifestly
inappropriate.
Right to cross-examine
„„
„„
There is reason to believe that the district court has come to
an erroneous conclusion.
It is not possible to assess whether the district court has come
to an erroneous conclusion without granting leave to appeal.
It is of importance for the correct application of the law that
a superior court considers the appeal.
There are other extraordinary reasons to entertain the appeal.
The parties can enter into a written agreement not to appeal a judgment
in respect of an existing dispute or any future dispute concerning a
specific legal relationship. Such agreement will constitute a bar
against any appeal in respect of the covered disputes.
A witness of fact is always subject to cross-examination.
Time limit
Third party experts
An appeal of a district court judgment must be submitted within
three weeks of the judgment date. If a party makes an appeal,
the other party is then entitled to also appeal the judgment within
one week of the expiration of the initial three weeks’ time limit.
19.What are the rules in relation to third party experts?
Appointment procedure
CLASS ACTIONS
An expert can be called by one of the parties or, with the exception
of commercial cases, by the court. The requirements to be met by
a party wishing to appoint an expert are much more lenient than
those imposed on a court in this respect. The court can reject
an expert appointed by one of the parties only under the rules
applicable to the rejection of evidence (for example, if the court
finds that the factual allegation that the party wishes to prove by
the expert is without importance in the case).
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21.Are there any mechanisms available for collective redress or
class actions?
Class actions are permitted. Class actions are based on the opt-in
mechanism (that is, a class member must choose whether or not
he wishes to be included as a member of the class). Only class
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Country Q&A
A witness of fact must give his testimony orally and, as a rule,
under oath. A witness is not required to submit a written witness
statement. On the contrary, the use of affidavits is restricted and
is admitted as evidence only if:
MULTI-JURISDICTIONAL GUIDE 2012/13
DISPUTE RESOLUTION
members who give written notice to the court, and thus choose
to opt-in, will be allowed to participate in the proceedings as
passive members of the class.
full and final legal force (that is, an appeal is pending), but the
debtor can avoid enforcement by providing security covering the
judgment amount pending the final decision.
As a general rule, the claimants must be represented by counsel
and that counsel must be an advokat. Counsel and the claimants
can enter into a risk agreement as regards the counsel’s fee
(that is, counsel obtains a fee connected to the outcome of
the dispute), although there are restrictions as to the level of
compensation that the counsel can request. The risk agreement
must be approved by the court to have effect.
CROSS-BORDER LITIGATION
COSTS
22.Does the unsuccessful party have to pay the successful
party’s costs and how does the court usually calculate any
costs award? What factors does the court consider when
awarding costs?
An unsuccessful party must reimburse the successful party for
the latter’s litigation costs. If a party succeeds partially, the
compensation may be adjusted. If the conclusive circumstance
in the case was unknown to the unsuccessful party, the court may
decide that each party must bear its own costs. However, this
order must not be made on the ground that the matter of law in
the case was difficult to evaluate.
Country Q&A
The compensation ordered corresponds to reasonable costs
of counsel, the party’s own work, loss of time and production
of evidence. Even the costs of settlement negotiations will be
compensated to the extent that the negotiations have been of
importance for the framing of the party’s claim.
23.Is interest awarded on costs? If yes, how is it calculated?
By law, interest is always awarded on costs. The interest rate is the
Swedish reference rate (decided annually by the Swedish Central
Bank: 2% for 2012) plus eight percentage points, running from
the date of the court’s determination until the date of payment.
ENFORCEMENT OF A LOCAL JUDGMENT
24.What are the procedures to enforce a local judgment in the
local courts?
The winning party can apply for enforcement of the judgment if the
unsuccessful party does not voluntarily perform. The application
for enforcement will be handled, decided and enforced by the
Swedish Enforcement Authority (Kronofogdemyndigheten). The
decisions of the Enforcement Authority can be appealed to a
specifically appointed district court, whose decision in some
cases can be appealed to the Court of Appeal, and finally to the
Supreme Court under the same rules applicable to appeals of
court decisions (see Question 20).
On filing the application for enforcement, the applicant must
attach the original of the judgment or order or, if the bailiff
consents, a certified copy thereof. A judgment comprising a
payment obligation can be enforced even if it has not obtained
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25.Do local courts respect the choice of governing law in a
contract? If yes, are there any areas of law in your jurisdiction
that apply to the contract despite the choice of law?
The parties’ autonomy with regard to applicable substantive law is one
of the main principles of Swedish law. Thus, the parties can normally
agree on any law to be applied to a specific matter or agreement.
However, there are some Swedish mandatory rules that apply despite
the choice of law, for example, competition and real estate rules.
26.Do local courts respect the choice of jurisdiction in a
contract? Do local courts claim jurisdiction over a dispute in
some circumstances, despite the choice of jurisdiction?
In a commercial matter, an exclusive submission to the courts of a
specific country are in general held valid and binding by a Swedish
court and thus bar proceedings in Swedish courts. This is subject
to certain exceptions, for example, in a case of bankruptcy.
In addition, if a civil claim is instituted in Sweden by which a
foreign state seeks to enforce its public laws, for example, tax,
currency or confiscation laws, the claim will generally be dismissed
except in cases where Sweden must entertain such claims under
an applicable treaty.
27.If a foreign party obtains permission from its local courts
to serve proceedings on a party in your jurisdiction, what is
the procedure to effect service in your jurisdiction? Is your
jurisdiction party to any international agreements affecting
this process?
Under Swedish law, a party to foreign court proceedings is free
to either:
„„
„„
Send judicial documents, by postal channels, directly to a
party in Sweden.
Serve such documents on a party in Sweden by private
courier or personal service.
If a party wishes to rely on Swedish authorities to effect service, it
must submit an application in accordance with the international
agreements to which Sweden is party (most notably, the HCCH
Convention on the Service Abroad of Judicial and Extrajudicial
Documents in Civil and Commercial Matters 1965 (Hague
Service Convention)). However, Sweden has declared that:
„„
„„
Swedish authorities are not obliged to assist in serving
documents transmitted using any of the methods referred
to in sub-paragraphs (b) and (c) of Article 10 of the Hague
Service Convention.
By virtue of the 3rd paragraph of Article 5 of the Hague
Service Convention, any document to be served under the
first paragraph of the same article must be written in or
translated into Swedish.
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In addition to the Hague Service Convention, Sweden is also
subject to Regulation (EC) 1348/2000 on the service in the
member states of judicial and extra-judicial documents in civil
and commercial matters (Service Regulation).
which is the Svea Court of Appeal in Stockholm in Sweden. The
exact procedure to obtain recognition differs depending on the
requirements of an applicable instrument. However, in any event,
the following steps will need to be taken:
„„
28.What is the procedure to take evidence from a witness in your
jurisdiction for use in proceedings in another jurisdiction? Is
your jurisdiction party to an international convention on this
issue?
„„
„„
Sweden is subject to Regulation (EC) 1206/2001 on co-operation
between the courts of the member states in the taking of evidence
in civil or commercial matters. The regulation provides for two
ways of taking of evidence:
„„
Direct transmission of requests between the courts.
„„
Direct taking of evidence by the requesting court.
In direct transmission, the Swedish court is approached directly by
the foreign court and has to execute the request within 90 days. In
direct taking of evidence, the request is instead addressed to the
Swedish Ministry of Justice which will first decide whether or not to
accept the request. Direct taking of evidence can only be conducted
on a voluntary basis. No coercive measures can be applied.
Sweden is a party to the following international conventions:
„„
„„
HCCH Convention on the Taking of Evidence Abroad in
Civil and Commercial Matters 1970 (Hague Evidence
Convention).
HCCH Convention on Civil Procedure 1954.
29.What are the procedures to enforce a foreign judgment in the
local courts?
For a foreign judgment to be enforced in Sweden, a treaty on
enforcement between Sweden and the foreign state is required.
Such treaties exist between EU and EFTA member states.
Sweden is subject to the Regulation (EC) 44/2001 on jurisdiction
and the recognition and enforcement of judgments in civil and
commercial matters (Brussels Regulation) and party to the:
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Brussels Convention on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters 1968 (Brussels
Jurisdiction Convention).
Lugano Convention on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters
2007 (New Lugano Convention).
EFTA Convention on Jurisdiction and Enforcement of
Judgments in Civil and Commercial Matters 1988 (Lugano
Convention).
Countries that are parties to any of the above instruments, for
example, the UK, can enforce its judgments in Sweden under
certain circumstances. The enforcement of a judgment under the
Brussels Regulation, the Brussels Convention and the Lugano
Conventions requires a formal decision of a competent authority,
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If the original language of the judgment is not Swedish, a
translation is required.
In addition, the applicant must enclose affidavits confirming:
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the judgment is enforceable in the state of origin;
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whether the judgment has been served on the
defendant; and
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in case of a default judgment, that the defendant has
been served the writ in reasonable time.
Additional documents may be required, depending on the
provisions of the applicable instrument. The examination carried
out by the Svea Court of Appeal does not concern the merits
of the judgment but only addresses questions related to form,
procedure and public policy.
Notably, a foreign judgment that is against the Swedish public
order (ordre public) cannot be enforced even if it falls under the
instruments above and satisfies the necessary conditions.
If a country has no treaty on enforcement with Sweden and is not
party to the Brussels Regulation, Brussels Convention and Lugano
Conventions, the foreign judgment is not enforceable in Sweden.
This is the case, for example, in relation to the US. However, such
foreign judgments may still be recognised and enforced de facto
if the parties had agreed that claims such as the ones dealt with
by the foreign court should be subject to litigation in that foreign
jurisdiction. In such a case, a Swedish court will simply accept
the foreign judgment (to the extent it does not violate the Swedish
public order) and deliver a judgment that replicates the foreign
judgment. The Swedish judgment can then be enforced as any
other local judgment. The reason for this is that a party that has
voluntarily accepted the jurisdiction of a given court should not be
able to escape an unfavourable judgement by that court by simply
invoking that the judgement cannot be enforced in Sweden.
Foreign judgments cannot be enforced under the principle of
reciprocity in Sweden.
Under the Swedish Arbitration Act, foreign arbitral awards can
be recognised and enforced in Sweden. Sweden is a party to the
UN Convention on the Recognition and Enforcement of Foreign
Arbitral Awards 1958 (New York Convention).
ALTERNATIVE DISPUTE RESOLUTION
30.What are the main alternative dispute resolution (ADR) methods
used in your jurisdiction to settle large commercial disputes? Is
ADR used more in certain industries? What proportion of large
commercial disputes is settled through ADR?
Arbitration is the most common method to settle large commercial
disputes. Mediation is the most common ADR method generally
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Enforcement of a foreign judgment
The application, which can consist of a brief request for
recognition, must be accompanied by the original of the
judgment or a certified copy of it.
MULTI-JURISDICTIONAL GUIDE 2012/13
DISPUTE RESOLUTION
(see Questions 31 and 35). Other ADR methods, used more
rarely, are:
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Expert determination.
Dispute review board (more common in large construction
contracts).
Rent-a-judge.
There are no statistics on how common ADR is in certain industries.
The number of ADR proceedings is increasing but there is no exact
figure on how common it is. The only available statistics relate to
institutional arbitration conducted at the Arbitration Institute of the
Stockholm Chamber of Commerce (SCC), by far the largest Swedish
arbitration institute. SCC registered 199 new cases in 2011, an
increase from the 2010 caseload. Of these 199 cases, 116 cases
(58%) were arbitrations administered under the SCC Rules.
In relation to mediation see Questions 31 and 35.
31.Does ADR form part of court procedures or does it only apply
if the parties agree? Can courts compel the use of ADR?
Country Q&A
The courts cannot compel the use of ADR. However, the District
Court has a duty to investigate whether there are possibilities
for an out-of-court settlement during the pre-trial hearing. In
general, the court attempts to bring about a settlement at the
pre-trial hearing. Many cases are settled prior to the main hearing
and some even during the main hearing, although at this stage
the court does not regularly play an active role.
If mediation appears appropriate the district court can, with the
consent of the parties, appoint a mediator and stay the proceedings.
In general a retired judge will be appointed as mediator. The
parties are under no obligation to accept an offer resulting from
mediation and the court is free to reach other conclusions than
the mediator. The parties must pay the mediator’s fees. Swedish
courts are increasingly exploring the possibility of appointing a
mediator. However, the use of mediation as an alternative dispute
resolution method in commercial disputes is still very limited.
If the mediation is conducted under the Stockholm Chamber of
Commerce (SCC) Mediation Rules (see Question 34), the mediator,
the SCC Mediation Institute, the parties and any other persons
participating in the mediation must respect the confidentiality of
the mediation.
An advokat cannot, without the consent of the opposing party,
disclose an offer of settlement made by the opposing party in
settlement discussions.
33.How are costs dealt with in ADR?
Generally, the parties are jointly and severally liable for the
mediation costs.
34.What are the main bodies that offer ADR services in your
jurisdiction?
The main body in Sweden that offers mediation services is the
SCC Mediation Institute of the Stockholm Chamber of Commerce
(SCC Mediation Institute). The Institute was established in 1999
and issued the Rules of the Mediation Institute the same year.
PROPOSALS FOR REFORM
35.Are there any proposals for dispute resolution reform? If yes,
when are they likely to come into force?
At present, there are no proposals for dispute resolution reform
that would affect larger commercial disputes. However, a new law
on mediation, the Swedish Mediation Act, was implemented in
August 2011.
* The authors would like to thank Niklas Eideholm for his assistance
in the preparation of this article.
The Court of Appeal can also appoint a mediator and stay the
proceedings.
32.How is evidence given in ADR? Can documents produced or
admissions made during (or for the purposes of) the ADR later
be protected from disclosure by privilege? Is ADR confidential?
There are no special provisions relating to evidence given in ADR.
The parties can freely agree on how evidence should be handled
in the mediation process.
ADR is not confidential by default. The same applies for documents
produced and admissions made during or for the purpose of the ADR
proceedings. However, a mediator cannot disclose information he
has discovered in connection with a mediation process. The parties
also have the opportunity to include a non-disclosure clause in the
mediation agreement.
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MULTI-JURISDICTIONAL GUIDE 2012/13
DISPUTE RESOLUTION
CONTRIBUTOR DETAILS
MATTIAS GÖRANSSON
KRISTOFFER LÖF
Mannheimer Swartling
T +46 8 5950 6108
F +46 8 5950 6001
E [email protected]
Wwww.mannheimerswartling.se
Mannheimer Swartling
T +46 8 5950 6565
F +46 8 5950 6001
E [email protected]
Wwww.mannheimerswartling.se
Qualified. Sweden
Qualified. Sweden
Areas of practice. Dispute resolution.
Areas of practice. Dispute resolution.
Recent transactions
Recent transactions
„„
„„
Specialises in commercial arbitration and litigation
with extensive experience from acting as counsel in the
courts of general jurisdiction, the administrative courts
and before arbitral tribunals.
Expertise in a range of industries including biotech,
energy, aviation and software, and has appeared before
high profile arbitral tribunals both under the major
institutional rules and in ad hoc arbitrations under the
UNCITRAL Rules.
„„
„„
Has acted as counsel in a large number of high value
arbitrations, under a variety of rules including the SCC,
ICC, ICDR/AAA and UNCITRAL Rules, relating to areas
such as energy (including gas price reviews, production
sharing agreements and gas infrastructure investments),
construction, telecom and life sciences.
Member of the Board of YAS (Young Arbitrators
Stockholm) and the Global Advisory Board of the ICDR
Young & International.
Country Q&A
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