Litigation

Last verified on Thursday 20th May 2021

Litigation: Sweden

Fredrik Lundblom and Sebastian Berglind

Vinge

Overview

1. Describe the general organisation of the court system for civil litigation.

Sweden

The Swedish court system is primarily constituted by the general courts, the administrative courts and special courts.

The general courts handle most civil cases and are, in descending hierarchical order: (i) the Swedish Supreme Court; (ii) the courts of appeal; and (iii) the district courts. To have a decision or judgment tried by a higher court, a leave to appeal must be obtained.   

Each court is an independent governmental body, which is completely free-standing from other courts and public authorities. The Swedish Constitution contains provisions forbidding any representative of the government or a government body from interfering with the courts’ judicial functions.

A court is not formally bound by what another court has found in a previous case. However, courts of lower instances are generally guided by precedents from the Supreme Court.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

2. Give an overview of basic procedural principles that govern civil litigation in your jurisdiction.

Sweden

In civil litigations, the claimant must bring one or several distinct and specific request(s) for relief. Thus, if the claimant would like that the court orders the respondent to pay the claimant money, the claimant must request that the court shall order the respondent to pay a specific amount to the claimant. The claimant must also state the circumstances the claimant invokes as a basis for its requests for relief.

A basic principle in civil litigation in commercial matters where the parties are free to settle the matter between themselves (excluding, eg, certain family law related matters) is that the parties are generally free to determine the scope of the proceedings (known in Sweden as dispositionsprincipen). This means, for example, that a court cannot order something else or more than what follows from the requests for relief brought in the case. As an example, if a claimant has brought a request for relief that the court shall order the respondent to pay €9,000 to the claimant, the court must not in the operative part of the judgment order more than what the claimant has requested, (the court may, however, order the respondent to pay a smaller amount than the claimant has requested). This principle also entails that the court will only base its judgment on such factual circumstances and evidence that the parties have invoked during the proceedings.

Another basic principle in civil litigation is that both parties should be given the opportunity to take active part in the proceedings, eg, by having the opportunity to review and comment on the submissions and evidence submitted to the proceedings by the other party (Sw. kontradiktoriska principen).

With respect to the courts’ application of the law to the factual circumstances and evidence that the parties have invoked, the principle of jura novit curia applies. In essence, this means that the court is free to apply the law that the court deems applicable to the circumstances invoked in the case. Another principle that further governs the  adjudication of cases is the principle of free evaluation of evidence. This means that a court is not bound by any formal rules concerning, for example, the evidentiary value of a certain type of evidence. Instead, the court is free to determine the evidentiary value of the evidence invoked by the parties based on the circumstances in the case at hand.

With respect to the main hearing, it is often stated that main hearings in Swedish civil litigation are governed by the principles of oral proceedings (sw. muntlighetsprincipen), concentration (sw. koncentrationsprincipen) and immediateness (sw. omedelbarhetsprincipen). These principles entail that the court shall base its judgment on the factual circumstances and evidence that are presented orally at the main hearing, and that the main hearing must be held within a reasonably concentrated period of time.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

3. Describe the general organisation of the legal profession.

Sweden

A party to a dispute may appear before the court via a legal counsel. Only a person deemed suitable by the court, by reason of that person's probity, knowledge and earlier activities, may appear as a legal counsel. The legal counsel must enjoy full legal capacity. Further, the person must be a resident in Sweden or another state within the European Economic Area (however, other persons may serve as an attorney if, with regard to the circumstances, the court considers it appropriate). In addition, a person serving as a legal counsel before Swedish general courts must master the Swedish language. There is no formal requirement that an attorney has any legal education; however, should the court consider an attorney unsuitable, he or she may be dismissed by the court. Although there is no formal requirement to that effect, in most civil cases in Sweden the attorneys are members of the Swedish Bar Association or is an associate lawyer at a law firm. A member of the Swedish Bar Association has the right to use the title advokat and it is a punishable offence for any non-member to use this title.

The Swedish Bar Association makes no distinction between solicitors and barristers.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

4. Give a brief overview of the political and social background as it relates to civil litigation.

Sweden

In general, Swedes are said to be prone to strive towards consensus. Traditionally, this has been reflected in the relationships between Swedish commercial entities, and it is probably still safe to say that many commercial agreements between Swedish parties are concluded orally and that many commercial disputes are settled amicably.

Traditionally, Swedish entities have been reluctant to resolve their differences through the courts. However, factors such as globalisation and more extensive cross-border trading may have had an impact on Swedish entities’ attitude towards disputes and how to resolve them. Today, most large and mid-size companies consider dispute resolution through litigation or arbitration as something that is necessarily associated with their commercial activities.

Most commercial contracts of  greater economic value or complexity will include an arbitration clause.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

Jurisdiction

5. What are the sources of law and rules governing international jurisdiction in civil matters?

Sweden

As a member of the European Union, Sweden is bound by Council Regulation (EC) No. 1215/2012 of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (the Brussels I Regulation). Sweden has also ratified the Convention of 13 October 2007 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the Lugano Convention). The Brussels I Regulation stipulates which member state’s courts have jurisdiction in respect of international cases within the European Union. The Lugano Convention is applicable in respect of international cases within the EFTA. The rules set out in the Lugano Convention largely correspond to the rules set out in the Brussels I Regulation.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

6. What are the criteria for determining the jurisdiction and venue of the competent court for a civil matter?

Sweden

Rules governing the general courts’ competence are set out in Chapter 10 of the Swedish Code of Judicial Procedure. As a main rule, a claim may be brought before the court granted jurisdiction over the geographical area in which the respondent is domiciled. However, with respect to certain types of claims, the law sets out that specific courts have exclusive competence (which, for example is the case with respect to claims relating to real property or certain claims relating to intellectual property rights). Furthermore, in some cases the claimant may choose whether to initiate proceedings before the court having jurisdiction over the area where the respondent is domiciled or another court competent under the law.

Several of the rules on general courts’ competence set out in Chapter 10 of the Swedish Code of Judicial Procedure are non-mandatory in the sense that it should be considered that the claimant has brought the claim before a competent court if the respondent does not object against the respondent’s choice of fora in due time.  

If a written contract stipulates that an existing dispute, or one that may arise in the future stemming from a specified legal relationship, may be instituted in a certain court, or that a certain court is exclusively competent, courts shall honour such an agreement unless otherwise prescribed by the law.

As a member of the European Union, Sweden is bound by Council Regulation (EC) No. 1215/2012 of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (the Brussels I Regulation). Sweden has also ratified the Convention of 13 October 2007 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the Lugano Convention). The Brussels I Regulation stipulates which member state’s court has jurisdiction in respect of international cases within the European Union. The Lugano Convention is applicable in respect of international cases within the EFTA. The rules set out in the Lugano Convention largely correspond to the rules set out in the Brussels I Regulation.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

7. Does your jurisdiction commonly attract disputes that have a nexus with other jurisdictions?

Sweden

In recent decades, parties with no connection to Sweden have to a large extent chosen to have disputes between them resolved through arbitration with Sweden as the seat of arbitration. This is not the case with respect to litigation.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

8. How will a court treat a request to hear a dispute that is already pending before another forum?

Sweden

In cases of litis pendens, the court where the case was initiated last shall dismiss the case on the basis that the dispute is already pending before another forum. 

Answer contributed by Fredrik Lundblom and Sebastian Berglind

9. How will the courts treat a dispute that is, or could be, subject to an arbitration clause or an agreement to arbitrate, including in interim proceedings?

Sweden

The Swedish Arbitration Act (Sw. Lag (1999:116) om skiljeförfarande) provides that a court may not, over an objection from a party, rule on an issue that pursuant to an arbitration agreement is to be decided by arbitrators. In addition, the Code of Judicial Procedure states that the Arbitration Act includes specific rules on procedural impediments and that these shall be considered only if an objection is raised by a party.  

A respondent that wishes to invoke an arbitration agreement as the basis for a claim that the court lacks jurisdiction must invoke the arbitration agreement on the first occasion that a party pleads his or her case in the court. The invocation of an arbitration agreement at a later stage shall have no effect, unless the party had a legal excuse for his or her delay and invoked the arbitration agreement as soon as the excuse ceased to exist.

It follows from the Arbitration Act that during the time the dispute is handled by the arbitrators or prior to that, a court may, notwithstanding the arbitration agreement, issue such decisions on security measures that the court is competent to issue according to the law.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

10. May courts in your country review arbitral awards on jurisdiction?

Sweden

On 1 March 2019 several amendments of the Arbitration Act entered into force. One of the new provisions stipulates that a decision from the arbitrators that they have jurisdiction to resolve the dispute may be appealed to the court of appeal within 30 days. Also, a party may challenge the jurisdiction of the arbitrators by challenging the award in which the issues referred to arbitration have been decided.

A decision by the arbitrator(s) that they have jurisdiction does not obtain legal force. Therefore, a party may, even though the party has not appealed the decision in which the arbitrators declared themselves competent, challenge an award on the basis that the arbitrators lacked jurisdiction. However, a party will be precluded from successfully invoking lack of competence during a challenge proceeding, unless the party during the arbitral proceeding explicitly objected against the continuance of the arbitral proceedings.    

It follows from the Arbitration Act that an arbitral award in which the arbitrators consider themselves lacking jurisdiction to determine the dispute, and on that basis dismisses the claim, can be appealed within two months.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

11. Are anti-suit injunctions available?

Sweden

Chapter 15 of the Code of Judicial Procedure includes provisions concerning provisional attachment and other security measures that are available to a party in connection with a claim in a civil case (see further below). Chapter 15 paragraph 3 provides that the court may decide on any "appropriate measure" to secure the claimant’s claim. However, it is very doubtful whether Swedish courts may issue an anti-suit injunction. As regards EU law, the ECJ has concluded in Case C-159/02 (Turner v Grovit) that the Brussels I Regulation (a former version thereof) precludes a court in a EU member state to grant an injunction prohibiting a party to proceedings pending before it from commencing or continuing legal proceedings before a court of another EU member state, even where that party is acting in bad faith with a view to frustrating the existing proceeding.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

12. Which entities are immune from being sued in your jurisdiction? In what circumstances? In what circumstances can creditors enforce a court judgment or arbitral award against a sovereign or a state entity?

Sweden

A fundamental starting point is that everyone is equal under the law, as proclaimed by the Swedish Constitution. In this regard, it may be noted that the Swedish monarch does not enjoy immunity with respect to civil law matters. However, immunity against court proceedings and enforcement does apply in some limited cases.   

International law encompasses rules and standards on immunity that may be applicable in a Swedish context. For example, the United Nations Convention on Jurisdictional Immunities of States and Their Property was adopted in 2004 and Sweden ratified the Convention on 23 December 2009. The Convention has been incorporated into Swedish law through the law on immunity for states and their property. The Convention governs the immunity of a state and its property from the jurisdiction of the courts of, in this case, Sweden. The Convention includes several provisions that govern in what circumstances state entities enjoy immunity. As regards court proceedings, the Convention stipulates, inter alia, that as a main rule, immunity against the jurisdiction of a court of another state does not apply if a state engages in a commercial transaction with a foreign natural or juridical person and a proceeding arises out of that commercial transaction. But since this merely is a main rule, important exceptions do apply. Further, the Convention comprises provisions on state immunity from measures of constraint in connection with proceedings before a court, including state immunity from post-judgment measures of constraint such as execution. In this regard, the Convention stipulates as a main rule that no post-judgment measures of constraint, such as execution, against property of a state may be taken in connection with a proceeding before a court of another state. However, several exceptions to this main rule apply, such as if it has been established that (i) the property at issue is specifically in use or intended for use by the state for other than government non-commercial purposes and (ii) is in the territory of the state of the forum, provided that post-judgment measures of constraint may only be taken against property that has a connection with the entity against which the proceeding was directed.  

Answer contributed by Fredrik Lundblom and Sebastian Berglind

Procedure

13. How are proceedings commenced? To what extent will a court actively lead the proceedings and to what extent will the court rely on the parties to further the proceedings?

Sweden

Proceedings are commenced when a claimant files a summons application with a court. If the application is not dismissed, the court shall issue a summons calling upon the respondent to submit a response to the summons application.

As regards the leading of the proceedings, an important starting point is that proceedings in Swedish courts are adversarial, meaning that the judges will rely on the circumstances and evidence invoked by the parties themselves rather than investigating circumstances and evidence itself. At the same time, the court has some responsibilities to lead the proceedings.

As far as the merits of the case are concerned, the court’s leading of the proceedings will mainly take place during the preparation of the case for final hearing, as it is considered that the court may delay the proceedings in an unnecessary manner if the court waits with such leading until the main hearing. Naturally, it is primarily incumbent on the court of the first instance to conduct leading of the proceedings, and it can therefore be noted that the statements below pertain to the proceedings in the first instance.  

During the preparation of the case for a final hearing, the court shall ensure, depending upon the nature of the case, that the issues in dispute are elucidated. The court will endeavour to remedy unclear and incomplete statements made by the parties by posing questions and making observations. The court shall proceed with the preparation of the case to achieve an expeditious adjudication of the case.

In practice, much of the court’s leading of the proceedings will be conducted during a preparatory hearing taking place during the preparation of the case for a final hearing. During the preparation and also during the main hearing, the court shall make certain that the case is investigated according to its nature and that irrelevant matters are not presented. Through questions and observations, the court shall attempt to remedy any unclear and incomplete statements.

The court’s leading of the proceedings can, in theory, relate to every aspect of the case. However, to a large degree, the court will rely on the parties to further the proceedings, and the question of to what extent the court shall actively lead the proceedings is a much-debated issue. In particular, it is a much-debated issue whether the court should actively probe whether the parties have invoked all the facts upon which they wish to base their cases, since such actions from the court could be regarded as unjustified involvement in the case between the parties.    

Moreover, a judgment may not be given for something else or more than that properly demanded by a party. In cases amenable to out-of-court settlement, the judgment may not be based on circumstances other than those invoked by a party as the foundation of his action.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

14. What are the requirements for filing a claim? What is the pleading standard?

Sweden

The statement of claim should include:

  • a distinct claim;
  • a detailed account of the circumstances invoked as the basis of the claim;
  • a specification of the evidence invoked and what shall be proved by each piece of evidence; and
  • the circumstances rendering the court competent unless this is apparent from what is otherwise stated.

In practice, it is common that a statement of claim contains only what is stated in bullet points 1, 2 and 4 above, as a list of evidence may be submitted later in the proceedings.

The application shall be signed by the claimant or his or her attorney in his or her own hand.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

15. What are the requirements for answering claims? What is the pleading standard?

Sweden

The statement of defence should include:

  • any objections regarding procedural impediments that the respondent desires to make;  
  • whether or not the claimant’s claims are admitted or contested;  
  • to the extent the claim is contested, the basis therefore including the respondent’s position as to the circumstances that constitute the basis of the claimant’s claim and also the respondent’s statement of the circumstances advanced in defence;
  • and a specification of the evidence invoked by the respondent and what the respondent wishes to prove by each piece of evidence.

As is the case with the statement of claim, it is customary that the statement of defence does not contain any specification of evidence and that such a specification is submitted at a later stage of the proceedings.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

16. What are the rules regarding further briefs and submissions?

Sweden

It is common that there are one or several rounds of submissions following the statement of claim and the statement of defence.

The parties may be directed by the court to finally determine their claims or response to claims and to state the evidence invoked in support thereof within a certain time frame. Following the expiration of such time, the parties may not introduce any new circumstances or adduce any new evidence, unless they had a valid excuse for not invoking it previously or the proposed amendment will not delay the adjudication of the case.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

17. To what degree are civil proceedings made public?

Sweden

As a main rule, all court hearings shall be open to the public. The court may however decide that parts of the hearing shall be held in camera, for example, for purposes of protecting alleged business secrets. The same applies to court filings in civil disputes, which are publicly available unless an exception applies pursuant to which the court decides that certain information shall be kept confidential and, therefore, not be available to the public.

The Code of Judicial Procedure prohibits photographing and video recording from inside or into a courtroom, but generally allows for tape recording.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

Pretrial settlement and ADR

18. Will a court render (interim) assessments about any factual or legal issues in dispute? What role and approach do courts typically take regarding settlement? Are there mandatory settlement conferences between the parties at the outset of or during the litigation?

Sweden

The courts shall, to the extent appropriate considering the nature of the case and other circumstances, work for an amicable solution of the case.

There are no mandatory settlement conferences taking place over the course of the proceedings. Generally, the courts will strive to engage the parties in settlement discussions in connection with the preparatory hearing, which is normally held relatively early in the proceedings. If the parties consent, the judge may discuss matters separately with each party.

If it is considered to be more appropriate that special mediation occurs, the court can, if the parties so agree, direct the parties to appear at a mediation session before a mediator appointed by the court, see further below.

The court may not in connection to settlement discussions render any interim assessments regarding any factual or legal issues in dispute. If this were nevertheless to happen, the judge in question may be considered biased and may have to recuse himself or herself from the case.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

19. Is referral to mediation or another form of ADR an option, or even mandatory, before or during the litigation?

Sweden

Referral of a dispute to mediation or another form of ADR is an option (see above), but not mandatory. In recent times, ADR has attracted an increasing amount of interest and it is occasionally suggested by the court. One of the primary advantages of mediation is that a mediator may make an interim assessment of the case, which may be helpful for the parties in assessing their legal position and thus deciding whether to proceed with the litigation or reach a settlement.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

Interim relief

20. What are the forms of emergency or interim relief?

Sweden

A common interim relief is the attachment of property, which a court can order in relation to a money claim, or the attachment of specific property.

Further, the court may issue an order for "appropriate measures" intended to secure the claimant’s claim. The law mentions examples of such appropriate measures, including injunctions against the carrying on of a certain activity or against the performing of a certain action. The court may also deem it appropriate to order that a party shall pay heed to the applicant's claim, or appoint a receiver, or to decide on any other measure required to protect the claimant’s rights. All such injunction and orders may be made subject to a default fine.

Also, in pending proceedings concerning superior right to certain property, if it is shown that one of the parties has unlawfully disturbed the opposing party's possession, or has taken any other unlawful measure regarding the property, the court may order the immediate restoration of possession or other immediate redress.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

21. What must a petitioner show to obtain interim relief?

Sweden

To obtain interim relief the claimant must show probable cause that he or she has a lawful claim against the defendant. If the interim relief relates to the attachment of specific property the person seeking relief must show probable cause that he or she has a superior right to that specific property and that the property is or can be made the basis of a judicial proceeding or determined by another similar procedure.

In addition to showing probable cause, it is also required that it is reasonable to suspect that the opposing party will take a certain action. What actions are relevant depends on the interim measure sought. In cases of money claims, it must be reasonable to suspect that the opposing party by absconding, by removing property or taking other action, will evade payment of the debt. If the claim regards superior right to certain property, it must be reasonable to suspect that the opposing party will conceal, substantially deteriorate, or otherwise deal with or dispose of the property to the detriment of the applicant.

In other cases, where a person is seeking measures other than the measures outlined in the paragraph above, it must be reasonable to suspect that the opposing party by carrying on a certain activity, by performing or refraining from performing a certain act, or by other conduct, will hinder or render more difficult the exercise or realisation of the applicant's right or substantially reduce the value of that right.  

Further, the claimant is generally obliged to deposit security to obtain a measure pursuant to Chapter 15. Such security must be sufficient to cover all potential loss that may be suffered by the defendant as a result of the interim measure in the event the claimant is ultimately unsuccessful in the main proceedings.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

Decisions

22. What types of decisions (other than interim relief) may a court render in civil matters?

Sweden

All formal actions and orders rendered by a court, save for the judgment, are in the form of a "decision". Hence, there are a number of various procedural decisions that may be rendered over the course of the proceedings. To name but a few examples, the court may decide to dismiss evidence, grant an injunction, or order a party to produce documents. 

Answer contributed by Fredrik Lundblom and Sebastian Berglind

23. At what stage of the proceedings may a court render a decision? Are motions to dismiss and summary judgment available?

Sweden

The court may render procedural decisions at any point of the proceedings. A party may move to have the case dismissed, but must do so in its first plea in the case or, if prevented at that time by legal excuse, move to dismiss as soon as possible after the excuse has ceased to exist. A party who fails to object within due time forfeits his right to raise the objection. The main rule is that if the claimant’s application is not dismissed, the court shall issue a summons calling upon the respondent to answer the case.

However, if the claimant's statement does not present a legal basis for the case, or if it is otherwise clear that the case is unfounded, the court may immediately enter judgment in the case without issuing a summons.

Summary judgments in the form of an acceptance of a claim where the defence is obviously frivolous and without merit are not available. 

Answer contributed by Fredrik Lundblom and Sebastian Berglind

24. Under which circumstances will a default judgment be rendered?

Sweden

A default judgment may be rendered where the respondent has been served with a summons but failed to respond thereto or, in cases where the claimant has based his claim on a written debt note or on a written promise concerning a performance other than payment, if the respondent has failed to show reasonable cause for his denial of the claim. A default judgment may also be renderedif a party fails to attend an oral hearing at the court. In such event, the claimant may request that the court renders a default judgment (which is not rendered sua sponte). A default judgment may also be rendered against the claimant in a situation where the claimant fails to participate in the proceedings. 

Answer contributed by Fredrik Lundblom and Sebastian Berglind

25. How long does it typically take a court of first instance to render a decision?

Sweden

This will depend on the magnitude and complexity of the case. Normally, at least one year will pass from when the summons application was filed until the court delivers its judgment.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

Parties

26. How can third parties become involved in proceedings?

Sweden

If a person not party to the proceedings requests joint adjudication upon instituting an action, which concerns the same matter at issue, against one or both parties, the cases may be joined in one proceeding.

If a party, in the event that a judgment is rendered against him or her, wishes to present a claim for rescission, damages or similar against a third party, he may institute proceedings against that third party for joint adjudication with the main claim. Moreover, if a third person, by reason of the potential outcome of a pending case, wishes to institute proceedings of the kind stated in the first sentence of this paragraph against one or both of the parties to a case, he or she may institute this action for joint adjudication with the main claim.

Cases between the same or different parties may also be joined in one proceeding in situations other than those described above if the joinder will aid the inquiry. If there is a reason to do so, the claims may be separated again at a later stage.

The aforementioned rules authorising joinder of cases in one proceeding apply only when the claims have been instituted in the same court, the court is competent, and the same rules of procedure apply to each case. However, the Supreme Court may, upon the application of a party or a court, decide to join cases instituted in different courts into one case in one of the courts if it is deemed that a joinder provides considerable advantages in respect of the handling of the case and does not result in considerable inconveniences for any party.

The Code of Judicial Procedure also contains provision regarding third-party intervention in specific cases. If a person who is not a party to pending proceedings asserts that the matter at issue bears on his or her legal right or obligation, and shows probable cause for his or her assertion, he or she may appear as an intervener in the proceedings on the side of either the plaintiff or the defendant. The person seeking to participate in pending proceedings as an intervener shall file an application for intervention with the court. The parties shall be heard concerning the application. If there is reason for that, the court may order a hearing on the matter of intervention, to be attended by the parties and the applicant. The court shall decide on the application as soon as possible.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

Fact-Finding and Evidence

27. Describe the rules of fact-finding in your jurisdiction.

Sweden

Proceedings in Swedish courts are adversarial, meaning that the courts will rely on the circumstances and evidence invoked by the parties themselves rather than investigating circumstances and evidence itself. Hence, it is up to the party to perform the fact-finding that is needed to plead its case.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

28. Will a court take or initiate the taking of evidence or will it rely on the parties to request the taking of evidence and to present it?

Sweden

In civil cases regarding commercial matters, it is the parties’ responsibility to invoke the evidence that they wish the court to consider.

The principles of free submission of evidence and free evaluation of evidence apply. This means that, in principle, all means of evidence are permitted and that the court is free to make an independent and overall assessment of the evidentiary value of the adduced evidence.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

29. Is an opponent obliged to produce evidence that is harmful to it in the proceedings? Is there a document disclosure procedure in place? What are the consequences if evidence is not produced by a party?

Sweden

Swedish procedural law does not provide for disclosure of evidence as is the case in, for example, the US or the UK. However, according to Chapter 38 section 2 of the Code of Judicial Procedure, anyone (a party to the proceedings or any third party) who is in possession of documents which may be deemed to have relevance as evidence in the proceedings may be ordered to produce such documents as requested by either of the parties. It is irrelevant whether such documents may be harmful in the proceedings to the party ordered to produce them. An order to produce documents may ultimately be enforced with the assistance of the Swedish Enforcement Authority. The rules on production of documents also pertain to electronically stored information.

Further, a party may request that the court orders the other party to present a full list of any evidence it is in possession of. Although this possibility is rarely used, it resembles a document disclosure procedure. 

Answer contributed by Fredrik Lundblom and Sebastian Berglind

30. Please describe the key characteristics of witness evidence in your jurisdiction. Is witness preparation allowed?

Sweden

Everyone who is not a party to the case may be heard as a witness. A person closely related to a party is not obliged to testify. A person closely related to a party's legal representative, however, may not avoid the duty to testify by reason of that relationship.

The general principle is that all witnesses shall be heard under oath in connection with the final hearing. However, an examination of a witness may take place outside the main hearing if it is not possible for the witness to attend the main hearing, if his attendance at the main hearing would cause costs or inconvenience that are not in a reasonable proportion to the importance of the examination being held at the main hearing, or if it can be assumed that the case will be adjudicated without a main hearing. As a main rule, written witness testimonies are not allowed.

Witness preparation is allowed.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

31. Who appoints expert witnesses? What is the role of experts?

Sweden

An expert witness may be appointed either on initiative by the court or on initiative by one of the parties. However, it is very rare for the court to initiate the appointment of an expert in a civil case.

Contrary to a witness of fact, an expert witness shall, in most cases, produce a written expert opinion regarding the matters of which he or she is to give testimony.

When the expert witness is appointed by one of the parties, essentially the same rules apply with respect to the expert witness as regards a witness of fact.

The role of an expert is to share his knowledge within his field of expertise with the court, to help the court to draw conclusions from the specific facts in the case at hand.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

32. Can parties to proceedings (or a partys directors and officers in the case of a legal person) act as witnesses? Can the court draw negative inferences from a partys failure to testify or act as a witness?

Sweden

According to the Code of Judicial Procedure, parties to the proceedings cannot act as witnesses. Instead, a party may testify under truth affirmation. If the party is a legal person, its legal representative is considered a party in this context and will, therefore, be heard not as a witness but, rather, under truth affirmation. There is no substantial difference in how an examination of a party representative and an examination of a witness is conducted.

If a party fails to respond to a court order to appear before it or otherwise to perform any act in the proceedings or refuses to answer a question relevant to the inquiry, the court shall determine, in view of all the attending circumstances, the evidentiary value of the party's behaviour.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

33. How is foreign law or foreign-language documentation introduced into the proceedings and considered by the courts?

Sweden

The Code of Judicial Procedure provides that if foreign law is to be applied and its content is not known to the court, the court may request a party to present proof thereon. However, it has been debated whether the court may leave the task of investigating the contents of the foreign law completely in the hands of the parties or if the court has in fact an obligation to ensure that the content of the foreign law has been adequately investigated. As the issue is somewhat unclear, it would be prudent for the parties to assume that it is their task to present sufficient evidence regarding the foreign law that they wish to invoke.

As a starting point, documents filed with the court shall be in Swedish. However, the Code of Judicial Procedure prescribes that if required, the court may provide for the translation of documents filed with or dispatched from the court. A person who has assisted the court in translation shall be entitled to a reasonable remuneration to be paid by the state. In the case NJA 2011 p. 345, the Supreme Court stated that although the law does not contain a rule according to which a court can order a party to provide a translation it may in a given case nevertheless be preferable to let a party translate the relevant document(s).

Answer contributed by Fredrik Lundblom and Sebastian Berglind

34. What standard of proof applies in civil litigation? Are there different standards for different issues?

Sweden

As a starting point, to meet the burden of proof a party must “demonstrate/show” the existence of the relevant alleged fact. This is generally considered to be a relatively high standard of proof, but not as high as the standard of “beyond reasonable doubt” applied in criminal cases.

However, in some cases the court may apply a different standard of proof. For example, according to Supreme Court precedents a lower standard applies in cases where it is difficult for an injured party to prove that the damage is caused by the circumstances presented by the injured party rather than other alternative causes; in those cases it is sufficient if it is “clearly more probable”, given all the facts of the case, that the damage was caused by the circumstances presented by the injured party. Another example is that for consumers seeking to prove that a certain loss or damage is covered by an insurance, it is sufficient that it is “more likely than not” that an insurance case is at hand.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

Appeals

35. What are the possibilities to appeal a judicial decision? How many levels of appeal are there?

Sweden

A judgment and most other decisions rendered by a district court in a civil case may be appealed. With a few exceptions, an appeal is made to the court of appeal and further, and finally, to the Supreme Court.

In practically all civil cases, a leave to appeal is required in both the court of appeal and the Supreme Court. A court of appeal shall grant leave to appeal if there is cause for doubt as to whether or not the district court’s ruling is accurate or if the accuracy of the district court’s ruling cannot be assessed without granting leave to appeal. Further, a court of appeal shall grant leave to appeal if it is of importance for the guidance of the application of law that a superior court considers the appeal or if there are otherwise extraordinary reasons to entertain the appeal. The Supreme Court, however, may grant leave to appeal only if it is of importance for the guidance of the application of law that the Supreme Court considers the appeal or if there are extraordinary reasons to entertain the appeal, such as that a grave procedural error has occurred in the court of appeal.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

36. What aspects of a lower court's decisions will an appeals court review and by what standards?

Sweden

Unless a leave to appeal is granted, a superior court will not conduct any review of the case.

However, if leave to appeal is granted, the superior court will conduct a full review of the merits of such parts of the lower court’s ruling with respect to which a leave of appeal has been granted (provided that the same circumstances are invoked as in the lower court).

No particular standard of review applies in the superior courts.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

37. How long does it usually take to obtain an appellate decision?

Sweden

Unless the outcome with respect to the leave to appeal is obvious, a decision to grant or deny leave to appeal is usually rendered within a few months. The proceedings in the superior court will commence after leave to appeal has been granted and may take approximately one to two years or more depending on the nature of the case.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

Special proceedings

38. Are class actions available?

Sweden

Class actions are available and may be used for any type of claim that may be tried by a general court pursuant to the provisions on civil cases in the Swedish Code of Judicial Procedure. However, class actions are rarely initiated as far as the authors are aware.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

39. Are derivative actions available?

Sweden

Derivative actions are available. One example is set out below.

Pursuant to the provisions in the Swedish Companies Act (Sw. Aktiebolagslag (2005:551)), a director, an auditor or a shareholder may, under some circumstances, be liable to pay damages to the company.

If the action is brought by the company, the company is party to the action, whereas, if the action is brought by the shareholder(s), it is the shareholder(s) that is party to the action. In both cases the company is the entity entitled to any damages possibly awarded by the court. The difference lies mainly in the liability for litigation costs. If the action is brought by the company, it is the company, as party to the action, which is liable for any litigation costs. If, however, the action is brought by the shareholder(s), it is the shareholder(s), as party to the action, who are liable for litigation costs.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

40. Are fast-track proceedings available?

Sweden

A claimant may file an application for a summary payment order with the Swedish Enforcement Authority that is to be served on the defendant. Typically, the respondent is given no more than two weeks to contest the claim. If the claim is not contested, the Enforcement Authority shall issue a payment order against the respondent as soon as possible. The Enforcement Authority will make no evaluation as to the merits of the claim. The payment order may be appealed to a district court, which will handle the case as a civil case pursuant to the provisions in the Swedish Code of Judicial Procedure. If the respondent, however, contests the claim, the Enforcement Authority may not issue a payment order. Instead, the claimant is entitled to request that the application be transferred to a district court, where the matter will be handled as a civil case.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

41. Is it possible to conduct proceedings in a foreign language?

Sweden

As a general rule, Swedish shall be the language used in courts. Parties may, however, submit written statements as well as provide written evidence in English.

As for oral proceedings, these are to be conducted in Swedish. However, in accordance with new legislation that entered into force on 1 March 2019, the courts of appeal and the Supreme Court may take oral evidence is English in, inter alia, challenge cases. It is, however, not yet possible to conduct the entirety of the oral proceedings in English. 

Answer contributed by Fredrik Lundblom and Sebastian Berglind

Role of Domestic Courts In Arbitration Matters

42. In which conditions does your domestic arbitration law apply? Does it apply equally to purely domestic and international arbitrations, and to commercial and investor-state arbitrations?

Sweden

According to section 46 of the Swedish Arbitration Act, the Act shall apply to arbitral proceedings seated in Sweden even if the dispute has an international connection. The Swedish Arbitration Act applies to both commercial and investor-state arbitrations.

To a large extent, the parties may agree to deviate from rules in the Act (which is often done by an agreement in the arbitration clause that the rules of an arbitration institute, such as the Arbitration Institute of the Stockholm Chamber of Commerce, shall apply).

Answer contributed by Fredrik Lundblom and Sebastian Berglind

43. Give an overview of instances in which state courts come into play in domestic and international arbitration proceedings.

Sweden

The starting point is that arbitrations are conducted without involvement of the courts. However, in certain circumstances, the courts have authority to intervene or participate in ongoing or future arbitratral proceedings. Some examples are given below.

One example in this respect is that the District Court may under certain circumstances be competent to appoint an arbitrator. For example, unless the parties have decided otherwise, the arbitral tribunal shall consist of three arbitrators, and each party shall appoint one arbitrator and the arbitrators shall appoint the third arbitrator. If one party has notified the opposing party of its choice of arbitrator and the other party fails to appoint an arbitrator within the specified time, the District Court shall appoint an arbitrator upon the request of the first party.

Moreover, if a party wishes a witness or an expert to testify under oath, or a party to be examined under truth affirmation, the party may, after obtaining the consent of the arbitral tribunal, submit an application to such effect to the District Court. If the arbitrators consider that the measure is justified having regard to the evidence in the case, they shall approve the request. If the measure may lawfully be taken, the District Court shall grant the application. Similarly, a party may, after obtaining the consent of the arbitral tribunal, submit a request for production of documents to the District Court.

A party may also, before submitting the request for arbitration or during the course of the arbitral proceedings, submit an application for interim measures with the District Court.

According to section 43 of the Swedish Arbitration Act, a claim that the arbitral award is invalid or that it should be set aside shall be filed with the Court of Appeal.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

44. Describe the rules governing recognition and enforcement of arbitral awards in your jurisdiction. To what extent do domestic courts review arbitral awards on the substance?

Sweden

The starting point is that an arbitral award is enforceable in Sweden. The enforcement of domestic arbitral awards are handled by the Swedish Enforcement Agency. The respondent shall be given the opportunity to comment on an application for enforcement of an arbitral award.

Sweden is party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention. Hence, the Swedish Arbitration Act provides that as a general rule, foreign awards are recognised and enforceable in Sweden. An application for enforcement of a foreign award shall be submitted to the Court of Appeal. The respondent shall be given the opportunity to comment on the application for enforcement of a foreign award.

Neither the courts or the Swedish Enforcement Agency will review arbitral awards on the substance during the enforcement proceedings.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

Effects of judgment and enforcement

45. What legal effects does a judgment have?

Sweden

An issue that has been adjudicated in a judgment that has gained legal force cannot be adjudicated again. This legal effect is often referred to as the principle of ne bis in idem or “negative legal effect”. The fact that a judgment has acquired legal force also mean that conclusions set out in the ruling under some circumstances can serve as ultimate facts in a new proceeding initiated on the basis of a new action. This is another form of the judgment’s legal effect, often referred to as “positive legal effect”.

As a main rule, a judgment will be given legal effect only as between the parties to the case and may not be enforced or invoked against any third party. There are, however, certain specific situations where a judgment may also have legal effect with respect to a third party. As a rule of thumb, a judgment may, for example, have legal effect against a third party to the extent that the parties under the civil law regime would be able to enter into an agreement with binding effect on a third party. Some additional exceptions also apply.   

If the judgment contains conclusions as regards the facts of the case and those conclusions lacks positive legal effect in subsequent proceedings (eg, in a case involving a third party), the judgment and the conclusions set out therein may nevertheless have evidentiary value in the subsequent proceedings

Answer contributed by Fredrik Lundblom and Sebastian Berglind

46. What are the procedures and options for enforcing a domestic judgment?

Sweden

All enforcement of judgments and other court decisions is administered by the Swedish Enforcement Authority, a government body completely independent from the courts. An enforcement procedure is initiated through the filing of an application for enforcement. The enforcement procedure may vary depending on the urgency of enforcing the judgment, but normally the Enforcement Authority will serve a request for payment on the debtor within a relatively short period of time. If the debtor fails to pay the debt, the Enforcement Authority will make investigations to locate assets that can be realised to enforce the judgment. The assets may thereafter be realised to enforce the judgment.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

47. Under what circumstances will a foreign judgment be enforced in your jurisdiction?

Sweden

The applicable regulation in Sweden differs mainly depending on whether or not the foreign judgment in question has been rendered in a state that is a member of the EU.

As for judgments rendered in other EU member states, the applicable regulation also differs depending on when the proceedings preceding said judgement were initiated. If the proceedings were initiated prior to 10 January 2015, the original version of the Brussels I Regulation (Council Regulation (EC 44/2001) is applicable, whereas the recast version of the Brussels I Regulation (Council Regulation 1215/2012) is applicable if the proceedings were initiated after said date.

Under the recast version of the Brussels I Regulation, judgments rendered in an EU member state, which is enforceable in that state, shall be enforced in Sweden. A party seeking enforcement under the recast version of the Brussels I Regulation must merely submit the judgment to the national authority handling enforcement in the form set out in the Brussels I Regulation. If enforcement is sought in Sweden, the application for enforcement shall be submitted to the Swedish Enforcement Authority.

Under the original version of the Brussels I Regulation, a judgement rendered in an EU member state, which is enforceable in that state, shall likewise be enforced in Sweden. Pursuant to the Regulation, such enforcement is, however, subject to an exequatur procedure, meaning that a national court first must declare the judgment enforceable.

For a judgment to be enforced in Sweden under the original version of the Brussels I Regulation, an application must be filed in the Svea Court of Appeal in Stockholm. A foreign judgment is to be declared enforceable by the Svea Court of Appeal immediately upon the fulfilment of a few formalities (such as the providing of a copy of the judgment). The court may not at this stage refuse to declare the judgment enforceable with reference to, inter alia, that enforcement would be manifestly contrary to public policy in Sweden. Thus, if the aforementioned formalities are fulfilled, the Svea Court of Appeal must declare the judgment enforceable. This declaration shall be served on the party against whom enforcement is sought, who is given one month to file an appeal of the decision with the Svea Court of Appeal. Upon appeal, the Svea Court of Appeal may refuse to declare the judgment enforceable with reference to, inter alia, public policy.

With respect to foreign judgments rendered in non-EU member states, neither the original nor the recast version of the Brussels I Regulation is applicable. As for countries within the European Free Trade Association (EFTA), the Lugano Convention is applicable. The EFTA member states are Iceland, Liechtenstein, Norway and Switzerland, but Liechtenstein has not ratified the Lugano Convention, and the Convention is thus not applicable to judgments rendered in Liechtenstein. The Lugano Convention contains, in principle, the same provisions as the original version of the Brussels I Regulation. This means that judgments rendered in Switzerland are subject to an exequatur procedure if enforcement is sought in Sweden. As for the remaining EFTA member states that have ratified the Lugano Convention (ie, Norway and Iceland) such a procedure is, however, not necessary. As a result of the close historical relationship and cooperation between the Nordic countries (ie, Sweden, Norway, Denmark, Iceland and Finland), the Nordic countries have for a long time allowed enforcement of judgments rendered in the other Nordic countries. According to the Act (1977:595) on the Recognition and Enforcement of Judgments in Civil Cases Rendered in the Nordic States (Sw. Lag (1977:595) om erkännande och verkställighet av nordiska domar på privaträttens område), judgments rendered in Norway, Denmark, Iceland and Finland shall be recognised and enforced as if were they judgments rendered by a Swedish court.

As for judgments rendered in non-EU or EFTA member states, there is no “single body of regulation” under Swedish international procedural law to be referred to in relation to issues of enforcement. There are a number of different statutes containing provisions dealing with enforcement issues of foreign rulings on different areas of the law. These statutes are based on international conventions and are thus only effective in relation to judgments rendered in countries that have ratified the relevant conventions.

Non-enforceable judgments may, however, in line with the Swedish principle of free sifting of evidence, be given evidential value with regard to factual circumstances, but a claimant would always have to initiate new court proceedings in Sweden, or in another EU member state or Lugano Convention member state, to obtain an enforceable judgment.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

Costs and Funding

48. Will the successful partys costs be borne by the opponent?

Sweden

According to the main rule, costs follow the event. Hence, an unsuccessful party will normally be ordered to fully compensate the successful party for its reasonable litigation costs. In cases where neither of the parties is fully successful, the court will apportion the costs, taking into consideration the respective success of each party. For example, if the claimant is considered to have been successful in relation to 50 per cent of its claim, the court will normally determine that the parties shall have no obligations for each other’s costs.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

49. May a party apply for legal aid to finance court proceedings? What other options are available for parties who may not be able to afford litigation?

Sweden

More or less all home or corporate insurance policies available on the Swedish market include legal aid up to a certain amount. For home insurance policies, the limit is normally around 200,000 krona. For corporate insurance policies, the limit may differ greatly depending on the type of insurance and insurance policy.

For natural persons there is also a possibility to receive state funded legal aid. Such state funded legal aid may be granted only if the person does not have a home insurance policy that includes legal aid and he or she because of a lack of financial means is unable to pay legal costs without such aid. Further restriction on when legal aid may be granted also apply, for example, when the matter pertains to business activities.  

Answer contributed by Fredrik Lundblom and Sebastian Berglind

50. Are contingency fee arrangements permissible? Are they commonly used?

Sweden

A member of the Swedish BAR Association may not, except for special cause, enter into a fee agreement with a client that confers a right to a share of the result of the mandate. This rule generally prohibits an advocate from entering into a professional fee agreement that entitles the lawyer in question to a quota (share) of the result of a mandate unless for specific reasons. Specific reasons for allowing such an agreement include, for example, cases concerning class action pursuant to the Swedish law on class action and cases where the member of the Swedish BAR Association is engaged in a cross-border mandate, the handling of which is required outside of Sweden. Another exception is when a client without a quota share agreement finds it difficult to get access to justice. The rule conforms with the Council of Bars and Law Societies of Europe’s Directives on Good Advocate Conduct within the EU (see item 3.3 therein) on the prohibition of profit quota agreements or pactum de quota litis or contingency fees, but it also takes into account such specific circumstances that may motivate the authorisation of a particular profit quota agreement. (See the comment on section 4.2.1 in the Swedish Bar Association’s Vägledande regler om god advokatsed – Med kommentar, reviderad juni 2016.)

Answer contributed by Fredrik Lundblom and Sebastian Berglind

51. Is third-party funding allowed in your jurisdiction?

Sweden

Third-party funding is allowed. A third party funding a trial is not a party and has no formal role in the proceedings. Normally, any third-party funding is kept secret from the court or the other party. As a third-party funder is not a party, it may under no circumstances assume control of the litigation or otherwise participate therein unless the provisions regarding intervention as mentioned above apply. However, a third-party funder is likely to require extensive contractual obligations from the funded party to act in accordance with the funder’s wishes.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

52. Are there fee scales lawyers must follow? Are there upper or lower limits for fees charged by lawyers in your jurisdiction?

Sweden

There are no formal fee scales or maximum fees with respect to counsel fees (except in relation to public defenders and similar). As regards members of the Swedish Bar Association, the Bar Association’s Code of Conduct stipulates, however, that the fees must be "reasonable". Whether or not the fee is reasonable is to be determined having regard to all aspects of the matter at hand.

Answer contributed by Fredrik Lundblom and Sebastian Berglind

Get unlimited access to all Global Arbitration Review content