COMMERCIAL LITIGATION IN SWEDEN
As in most jurisdictions, Swedish general courts form a three-tiered system; district courts, courts of appeal and the Supreme Court. There are also general administrative courts (dealing with i.a. tax matters) and a few special courts.
General courts deal with both civil and criminal matters. Only civil (commercial) dispute will be discussed in this summary presentation.
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.
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 for instance personal 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 most commercial cases, written pleadings are voluminous and written documents and pleadings may today, within limits, be accepted as part of the main hearing by consent of the court as may written witness statements. The needs of efficiency has gradually affected and transformed the procedural system.
To modernize the system and transform it to a procedural order of higher 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. The need for further adaptions is recognized and the procedural system will continue to be transformed as a response to increasing pressure and complexities confronting the judiciary.
It is fundamental to Swedish judicial procedure that the relief sought by any of the parties is specified. These requirements of are harsher than those of many other jurisdictions, wherein the extreme the nature of remedies to be obtained may instead be 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).