Thought leadership from our experts

Commercial litigation in Sweden

Olof Rågmark, Delphi, Sweden

In Sweden as in most jurisdictions, general courts form a three-tiered system; district courts, courts of appeal and the Supreme Court. In Sweden, there are also general administrative courts (dealing with ia tax matters) and special courts, both those follow separate procedures and will not be discussed below.

General courts deal with both civil and criminal matters. Review permit is required for all appeals. Whilst the Supreme Court normally grants leave only for the purpose of establishing a precedent, the appellate courts will also give leave to appeal if there are or may be reasons to change the decision of the lower court.

The complexity of commercial disputes are increasing in Sweden as elsewhere in Europe. Although arbitration is a preferred dispute mechanism for commercial disputes in Sweden, also the general courts decide an increasing number of commercial disputes each year of an increasing complexity.

Swedish court proceedings are public and all information in the court files is open to the public. Exceptions can be made by the court for trade secrets and personal and other sensitive information. It is of essence for commercial parties to consider the need for confidentiality when submitting briefs and documents to a court, requesting confidentiality when appropriate.

The Swedish Procedural Code (Sw: Rättegångsbalken) of 1942 is said to have been derived from the Austrian Code of Civil Procedure (of 1895) but is clearly much influenced by Danish and English traditions. The Code provides for an adversarial (non-inquisitorial), oral trial procedural; the proclaimed leitmotifs are "orality", "immediacy" and "concentration". The first means that all material on which judgments are to be based must be presented orally, the second that such presentation must be made directly to the court and the third that the main hearing is to be arranged without interruptions. As is the case with most cardinal principles, they are today partly fictions. In complex cases, preliminary written pleadings are voluminous and written documents and pleadings may be accepted as part of the main hearing by consent of the court as may witness statements. The needs of efficiency has gradually affected and transformed the procedural system.

In order to modernize the system and transform it to a procedural order of high flexibility, a number of significant changes have been affected in the course of the last years. Those changes have included the acceptance of written witness statements and the hearing of witnesses only in the District Courts; Superior Courts are not administrating new hearings of witnesses.

In 2012-2013 these amendments have been evaluated and certain further changes have been suggested by primarily the courts, the Swedish bar association being somewhat skeptical of the possibility to continue to rationalize the procedures without coming into conflict with essential protective principles.

It is fundamental to Swedish judicial procedure that the relief sought by the Claimant – or by the Respondent – is specified. That requirement of specification is reflected by the provisions in the Code (Ch. 17 p. 3) that the court may not grant different or more extensive relief than what has been properly demanded by a party. Hence, the parties' prayers for relief have a preclusive effect. These requirements of Swedish law are quite different to those of many other jurisdictions, where the nature of remedies to be obtained is instead left to the discretion of the courts.

The requirement of specification may – as may for instance the requirements on proof for damages suffered that the Swedish courts have traditionally upheld – come in conflict with requirements under EU law and the Swedish Courts are adapting and openly changing some earlier practices in reference to the requirements of EU directives (on effective remedies having to be available).

The parallelism of the general courts and administrative courts may cause considerable problems in relation to European principles on ne bis in idem – not tried twice – and did do so in 2013 when the Swedish Supreme Court finally accepted the European point of view and decided that prior practices allowing for parallel sanctions against tax evasion in the general and administrative courts were in breach of European principles. Having said that, this analyze will affect a number of other areas in which both court systems administers justice, environmental law, traffic law, etc.

Also the Swedish arbitration system has been evaluated in the course of 2013, resulting in a government committee being constituted to evaluate the possible need of further modernizations of the Arbitration Act, for instance in relation to multi party disputes. A significant part of international arbitrations in Sweden is administrated by the Arbitration Institute of the Stockholm Chamber of Commerce, SCC. SCC are constantly evaluating and regularly updating different rules that they are offering. In 2013, no significant changes were made to the rules.

Delphi is a Swedish full service law firm with a broad experience in commercial dispute resolution. Delphi's lawyers work in and before arbitration tribunals in ad hoc and institutional proceedings - such as SCC (Arbitration Institute of the Stockholm Chamber of Commerce) or ICC - as well as before Swedish courts. Delphi advises clients from a wide variety of business sectors and of many nationalities.

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SE-111 84 Stockholm, Sweden
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