PRACTICAL LAW MULTI-JURISDICTIONAL GUIDE 2012/13 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
Sweden Mattias Göransson and Kristoffer Löf* Mannheimer Swartling www.practicallaw.com/1-520-1031 MAIN 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? 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. 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. 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. 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 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. 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 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.
Rights of audience 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. 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 5. What legal fee structures can be used? Are fees fixed by law? Insurance 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. 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. 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? 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. 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). 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
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. 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. 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? 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 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. 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 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: 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.
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)? 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). 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 Disclosure 16. What documents must the parties disclose to the other parties and/or the court? Are there any detailed rules governing this procedure? 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. 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. Damages as a result 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 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. 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 This is the same as for interim injunctions (see Question 12). 14. Are any other interim remedies commonly available and obtained? See also Question 17, Other non-disclosure situations. Privileged documents 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. FINAL REMEDIES 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. Privileged documents 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. 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.
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. 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). Examination of witnesses 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? 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. APPEALS 20. What are the rules concerning appeals of first instance judgments in large commercial disputes? Which courts 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. Oral evidence 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: It is specifically authorised by statute. The witness cannot be examined before court. 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 A witness of fact is always subject to cross-examination. Third party experts 19. What are the rules in relation to third party experts? Grounds for appeal Leave to appeal is required in all commercial cases. Leave to appeal is granted where: 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. Time limit 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. Appointment procedure 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). CLASS ACTIONS 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
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. 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. 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. CROSS-BORDER LITIGATION 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? 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. 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 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. 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 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.
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). 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. Enforcement of a foreign judgment 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: 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, 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: 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. If the original language of the judgment is not Swedish, a translation is required. In addition, the applicant must enclose affidavits confirming: the judgment is enforceable in the state of origin; whether the judgment has been served on the defendant; and 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 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
(see Questions 31 and 35). Other ADR methods, used more rarely, are: 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? 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 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? 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. 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.
CONTRIBUTOR DETAILS MATTIAS GÖRANSSON Mannheimer Swartling T +46 8 5950 6108 F +46 8 5950 6001 E mgn@msa.se W www.mannheimerswartling.se KRISTOFFER LÖF Mannheimer Swartling T +46 8 5950 6565 F +46 8 5950 6001 E klo@msa.se W www.mannheimerswartling.se Qualified. Sweden Areas of practice. Dispute resolution. 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. Qualified. Sweden Areas of practice. Dispute resolution. Recent transactions 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.