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BRITISH INSTITUTE OF INTERNATIONAL AND COMPARATIVE LAW PROJECT REFERENCE: JLS/2006/FPC/21 – 30-CE-00914760055

THE EFFECT IN THE EUROPEAN COMMUNITY OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS: RECOGNITION, RES JUDICATA AND ABUSE OF PROCESS

Project Advisory Board: The Rt Hon Sir Francis Jacobs KCMG QC (chair); Lord Mance; Mr David Anderson QC; Dr Peter Barnett; Mr Peter Beaton; Professor Adrian Briggs; Professor Burkhard Hess; Mr Adam Johnson; Mr Alex Layton QC; Professor Paul Oberhammer; Professor Rolf Stürner; Ms Mona Vaswani; Professor Rhonda Wasserman; Professor Mathijs ten Wolde Project National Rapporteurs: Professor Alegría Borrás (Spain); Mr Andrew Dickinson (England and Wales); Ms Esther Rivera (Spain – Assistant Rapporteur); Mr Christian Heinze (Germany); Professor Lars Heuman (Sweden); Mr Urs Hoffmann-Nowotny (Switzerland – Assistant Rapporteur); Professor Emmanuel Jeuland (France); Professor Paul Oberhammer (Switzerland); Mr Jonas Olsson (Sweden – Assistant Rapporteur); Mr Mikael Pauli (Sweden – Assistant Rapporteur); Dr Norel Rosner (Romania); Ms Justine Stefanelli (United States); Mr Jacob van de Velden (Netherlands) Project Director: Jacob van de Velden Project Research Fellow: Justine Stefanelli Project Consultant: Andrew Dickinson Project Research Assistants: Edward Ho Aniket Mandevia Floor Rombach Daniel Vasbeck

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REPORT

The Effect in the European Community of Judgments in Civil and Commercial Matters: Recognition, Res Judicata and Abuse of Process

Sweden

Professor Lars Heuman (National Rapporteur)

Mr Jonas Olsson (Assistant Rapporteur)

Mr Mikael Pauli (Assistant Rapporteur)

Stockholm University

School of Law

S 106 91 Stockholm

Sweden

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I. Judgments............................................................................................................5

A. The concept, form, structure and terminology of judgments.............................................. 5

B. The final determination and findings on issues of fact and law ......................................... 6

C. The binding character of a judgment .................................................................................. 7

D. Judgments that are capable of having preclusive effects .................................................... 8

II. Preclusive effects ...........................................................................................14

A. Claim preclusion ............................................................................................................... 14 1. Existence and nature of claim preclusive effects......................................................................................14 2. Policies underlying claim preclusive effects ............................................................................................16 3. Conditions for claim preclusive effects ....................................................................................................17 4. Invoking claim preclusive effects .............................................................................................................21 5. Exceptions to claim preclusive effects......................................................................................................22 6. Claimant and Defendant ...........................................................................................................................27 7. Other participants .....................................................................................................................................29 8. Represented persons .................................................................................................................................32 9. Persons connected to the Claimant, Defendant, and other participants ....................................................35 10. Strangers ..............................................................................................................................................37

B. Issue preclusion................................................................................................................. 37 1. The existence and nature of issue preclusive effects ................................................................................37 2. Policies underlying issue preclusive effects .............................................................................................37 3. Conditions for issue preclusive effects .....................................................................................................37 4. Invoking issue preclusive effects..............................................................................................................37 5. Exceptions to issue preclusive effects ......................................................................................................37 6. Claimant and Defendant ...........................................................................................................................38 7. Other participants .....................................................................................................................................38 8. Represented persons .................................................................................................................................38 9. Persons connected to the Claimant, Defendant, and other participants ....................................................38 10. Strangers ..............................................................................................................................................38

C. Wider preclusive effects ................................................................................................... 38 1. The existence and nature of wider preclusive effects ...............................................................................38 2. Policies underlying wider preclusive effects ............................................................................................38 3. Conditions for wider preclusive effects ....................................................................................................38 4. Invoking wider preclusive effects.............................................................................................................39 5. Exceptions to wider preclusive effects .....................................................................................................39 6. Claimant and Defendant ...........................................................................................................................39 7. Other participants .....................................................................................................................................39 8. Represented persons .................................................................................................................................39 9. Persons connected to the Claimant, Defendant, and other participants ....................................................39 10. Strangers ..............................................................................................................................................39

III. Preclusive effects of judgments within the Brussels/Lugano Regime ..........40

A. Recognition....................................................................................................................... 40 1. Judgments recognised...............................................................................................................................40 2. Procedural aspects of recognition.............................................................................................................41 3. Exceptions to the rule (grounds for non-recognition)...............................................................................41 4. Effects of recognition ...............................................................................................................................44

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B. Claim preclusion within the Brussels/Lugano Regime..................................................... 45 1. Existence and nature of claim preclusive effects......................................................................................45 2. Policies underlying claim preclusive effects ............................................................................................45 3. Law applicable to claim preclusive effects...............................................................................................45 4. Conditions for claim preclusive effects ....................................................................................................45 5. The identity of claims in the Brussels/Lugano Regime ............................................................................45 6. The identity of parties in the Brussels/Lugano Regime............................................................................45 7. Invoking claim preclusive effects under the Brussels/Lugano Regime ....................................................45 8. Exceptions to claim preclusive effects under the Brussels/Lugano Regime.............................................47 9. Persons affected by claim preclusive effects ............................................................................................47

C. Issue preclusion................................................................................................................. 47 1. Existence and nature of issue preclusive effects.......................................................................................47 2. Policies underlying issue preclusive effects .............................................................................................47 3. Law applicable to issue preclusive effects................................................................................................48 4. Conditions for issue preclusive effects .....................................................................................................48 5. Invoking issue preclusive effects..............................................................................................................48 6. Exceptions to issue preclusive effects ......................................................................................................48 7. Persons affected by issue preclusive effects .............................................................................................48

D. Wider preclusion (abuse of process/claims and issues that could or should have been raised)........................................................................................................................................ 48

1. The existence and nature of wider preclusive effects ...............................................................................48 2. Policies underlying wider preclusive effects ............................................................................................49 3. The law applicable to wider preclusive effects.........................................................................................49 4. Conditions for wider preclusive effects ....................................................................................................49 5. Invoking wider preclusive effects.............................................................................................................49 6. Exceptions to wider preclusive effects .....................................................................................................49 7. Persons affected by wider preclusive effects ............................................................................................49

E. Authentic instruments/court approved settlements........................................................... 49

IV. Preclusive effects of third state judgments....................................................50

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I. Judgments

A. The concept, form, structure and terminology of judgments Please describe the typical concept, form, structure and terminology of judgments in your legal system.

Summary:

Swedish procedural law makes an important distinction between decisions (beslut) and judgments (domar). Decisions refer to procedural questions, eg questions of res judicata.

A Swedish judgment essentially consists of two parts: the ultimate order (ie the operative part of the judgment) and the reasoning in support of the judgment. The judgment first sets forth basic information such as the name of the court, the date of the judgment, the court’s location and the names of the parties and their counsel. The judgment’s first page contains the ultimate order. Many judgments contain what is called a ‘background’ which summarises the factual, and sometimes procedural, history of the dispute. This is followed by a statement of the parties’ claims (yrkanden) and legal grounds (grunder), and the parties’ further presentation of facts (sakframställan). The judgment then sets forth the court’s reasoning and leads to a conclusion. The reasoning is usually detailed but limited to what the court deems relevant to reach its conclusion. Practice in relation to the degree of detail regarding the reasoning does not seem to have been directly influenced by the ECHR, nor has Sweden been found to have contravened its provisions in this respect.

Full response:

The Code of Judicial Procedure, Chapter 17, section 7 contains a provision regarding the necessary contents of a judgment. At the outset, it states that the judgment must be in writing and specify in separate sections the court, time, and place of pronouncement of the judgment, the parties and their attorneys or counsels. Additionally, the judgment contains an ultimate order.1 This means the operative part of the judgment. Moreover, the judgment must set forth the following: the parties’ demands (the remedy sought) and objections, and the facts on which they are based; and the reasoning in support of the judgment, including a statement of what has been proved in the case. The section also provides that a judgment rendered by a superior court must, to the extent necessary, describe the judgment of the lower court. Finally, the provision states that if a party is entitled to appeal from a judgment or apply for the reopening of a default judgment, the judgment must state the steps he must take to do so.

These are minimum rules for the contents of the judgment. Consequently, in practice, the judgment contains more than is provided for in this section.

In other words, a judgment contains the name of the court, the date of issuance of the judgment, and the geographical location of the court. In addition, it always states the number of the case at issue, eg “T 501-03”.2

The parties’ names (including personal identification numbers or registration numbers for legal persons) and addresses, and the names, titles and office addresses of their counsel are set forth on the first page of the judgment. The ultimate order, eg the court’s position vis-à-vis the claimant’s claim, is set forth on the first page.

If the claim is denied, the ultimate order is very short. In such cases, the ultimate order usually states that “the claim is denied”.

1 The official translation of the Code of Judicial Procedure uses the term “final judgment”. (The translation can be found on the Swedish government´s website: http://www.sweden.gov.se/sb/d/390/a/1540). Bader Ginsburg & Bruzelius, Civil Procedure in Sweden – Columbia University School of Law Project on International Procedure (Martinus Nijhoff, The Hague 1965), p 303 and Lindell, Civil Procedure in Sweden (2nd edn Iustus förlag, Uppsala 2004), p 121 have translated “domslut” as “ultimate order”. 2 The letter “T” indicates that it is a civil case (“tvistemål”) and not a criminal case (“brottmål”). The combination of numbers indicates that it is the five hundred and first case submitted to the District Court during 2003.

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An ultimate order granting a claim can take many different forms, depending on the claims in the case.3 If the case concerns an obligation to pay money, it states that the defendant “is obliged to pay SEK XX to the claimant”. It is important to be precise in stating the ultimate order in performance actions in order to enable enforcement of the judgment.

With respect to a declaratory judgment, the ultimate order can state that “it is declared that agreement XX between the parties is binding” or that “A has title superior to B in property X”.

The ultimate order must also incorporate decisions on other issues, for example in respect of the litigation costs in the case.

In addition to the ultimate order, many judgments contain a heading entitled “Background”. This is a short summary of the parties and their relationship, as well as the way in which the dispute arose. There may also be a description of the procedural history of the case.

Both parties’ claims are usually set forth under a heading, as are each party’s grounds for their claims.

The parties’ detailed statements in respect of the course of events and the argumentation in factual and legal questions (but usually not questions of evidence) are presented under a separate heading entitled “presentation of the facts in controversy” (sakframställan/ utveckling av talan).

Under the heading “Reasoning in support of the judgment” (Domskäl) the court usually first identifies the persons who have testified in the case.4 The content of the testimony of the parties and the witnesses is also sometimes stated, in greater or lesser detail. The “findings” are then presented under this heading. In the findings, the court states how it evaluated the evidence and what was proven in the case. This is followed by a report of the court’s assessment of the legal issues. Sometimes factual and legal questions are intertwined.

The reasoning leads to a conclusion, which is repeated in the ultimate order (albeit sometimes with greater precision in the ultimate order).

Generally, one can thus say that the reasoning in support of the judgment in a civil case is usually relatively detailed but the focus lies on that which the court deemed relevant. Thus, the court does not always address all of the allegations and interpretations advanced by the parties.

The practice of drafting and provision of reasons for judgments does not seem to have been influenced by Article 6 of the European Convention on Human Rights. To the best of our knowledge, the European Court of Justice has not found Sweden guilty of deficient reasoning in support of the judgment in a civil case.5

B. The final determination and findings on issues of fact and law How does the court's determination of a matter in your legal system relate to the findings on issues of fact and law on which this determination is based?

3 The court is bound by the parties’ claims in the case, see Code of Judicial Procedure, Chapter 17, section 3, which reads as follows: “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 pleaded by a party as the foundation of his action.” 4 All evidence presented in the case must – if there has been a main hearing – be identified in a separate protocol. 5 Cf Danelius, Mänskliga rättigheter i europeisk praxis – en kommentar till Europakonventionen om de mänskliga rättigheterna (3d edn Norstedts Juridik, Stockholm 2007), p 257 et seq.

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Summary:

Although in principle an analysis of the reasoning is unnecessary to interpret the ultimate order, one must study the parties’ claims and grounds in order to determine the subject of the dispute. An appellate court may re-adjudicate the lower court’s findings of issues and fact and law and is therefore not limited to review of legal questions.

Full response:

As pointed out above, a Swedish judgment consists principally of two parts: the ultimate order and the reasoning in support of the judgment. In addition, the judgment first and foremost sets forth the parties’ claims and grounds of action. The basis of Swedish judgments is simple: legal force is determined by the ultimate order in light of the grounds for the claimant’s case.

In principle, one need not analyse the reasoning in support of the judgment in order to interpret the ultimate order. On the other hand, one must study the parties’ claims and grounds therefor (which are stated in the judgment) in order to determine the subject of the dispute. Specifically, many judgments pertain to an obligation to pay money, and in such cases the ultimate order is very short and simply says that “[defendant’s name] is obliged to pay SEK [XX] to [claimant’s name]”. If a judgment is appealed, the higher court is, in principle, free to readjudicate the conclusions in respect of issues of fact and law reached by the lower court. The higher court’s adjudication is thus not limited to legal questions. In certain situations, it is possible for a higher court to decide a case “on the documents”, without any hearing.

C. The binding character of a judgment Please describe the prerequisites for a judgment to have binding character so as to be capable of having preclusive effects in your legal system.

Summary:

A judgment becomes final once the period for appeal has lapsed and no appeal has been made. The lis pendens rule will bar a new litigation regarding the same matter at issue as long as there is a pending litigation. The first litigation is still pending if the judgment is under appeal.

A final judgment may be set aside by means of extraordinary appeal (extraordinära rättsmedel) based on substantive defects (resning) or grave procedural errors (domvilla); however, a final judgment is presumed valid until reversed by a higher court. If a second judgment has been based on a first judgment which is later reversed, the second judgment may also be reversed via extraordinary appeal based on substantive defect.

Full response:

A judgment becomes final (i.e. has the formal status of res judicata) once the period to appeal has expired and none of the parties have appealed. If the judgment has been appealed, it will thus not be final in this sense.6 However, it will have preclusive effects in respect of the rule of lis pendens, which entails that new litigation on the same matter at issue as the pending litigation may not be commenced. When the first litigation is subsequently concluded, new litigation at that point is not impeded by lis pendens but rather by legal force. Thus, in principle, the legal force effects of a judgment can be determined prior to issuance of the judgment. The lis pendens effect is comparable only to so-called negative legal force and not positive legal force (see introduction to section II regarding these terms). Consequently, lis pendens leads to a dismissal of a new case which pertains to the same matter at issue. This means that the court does not adjudicate the matter on the merits. A second judgment cannot be based on an appealed judgment since the latter has no legal force.

However, it is conceivable that a final judgment may be set aside based on extraordinarily appeals rules (see section II A, 5). The issue here is one of relief for substantive defects and relief for grave procedural errors. Assume that a second judgment was based on a first judgment, but that the first judgment later was changed after exercise of an

6 On the other hand, judgments and certain decisions can be said in another sense to be “binding” even if they are appealed. Such a judgment in respect of payment liability can, to a certain extent, be enforced. In addition, it is possible for the court to decide that judgments can be enforced notwithstanding appeals (see Code of Judicial Procedure, Chapter 17, section 14). Moreover, interlocutory decisions can be enforced immediately. A higher court can, however, in certain cases, stay a judgment or decision. This temporarily freezes enforcement.

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extraordinary appeal. (The case was perhaps re-opened due to a party´s access to new evidence.7) Then, also the second judgment can be subject to an extraordinary appeal, in light of the rules regarding relief for substantive defects.8

In terms of the question of validity, the basic assumption is that all judgments are valid until they are reversed by a higher court. According to older law, a seriously deficient judgment could be seen as non-existent, ie as a nullity. Today, the main rule is the opposite. In a case in 1997,9 the Swedish Supreme Court found that the fact that a court employee exceeded his authority may only in exceptional cases result in the decision being deemed a nullity. On the other hand, the Supreme Court found that a typical case of nullity is where the decision is invalid because it is rendered by a clearly unauthorised person.10

Preclusion requires that the matter be tried on the merits. This entails that, eg, dismissal decisions based on the lack of jurisdiction of the court or a decision to dismiss due to withdrawal of the claim do not acquire legal force in respect of the matter at issue. On the other hand, the decision to dismiss acquires legal force in respect of the issue which led to the dismissal.11

D. Judgments that are capable of having preclusive effects Please identify and describe (1) the types and characteristics of judgments in your legal system that are capable of having preclusive effect and (2) any types of judgments that are not capable of having preclusive effects.

Summary:

The scope of the preclusive effects is determined by what under Swedish law is called “legal force” (rättskraft). To determine the legal force of a judgment one must consider the relief sought and the grounds for it. In principle all judgments are capable of having preclusive effects. The two most important types of judgments are performance judgments (fullgörelsedom) and declaratory judgments (fastställelsedom). However, using another kind of categorization there are several other types of judgments or decisions capable of having preclusive effects: (1) default judgments from which an appeal can no longer be lodged; (2) partial judgments; (3) certain intermediate judgments (4) court-approved settlements; (5) liquidated damages judgments; (6) final decisions dismissing a case based on a procedural impediment (eg res judicata); and 7) decisions in summary litigation.

Full response:

Introduction

Under Swedish law, legal force questions are resolved by comparing the issues which were determined in a final judgment with the issues which arise in a new case. The comparison primarily addresses the claims and grounds. Accordingly, legal force issues cannot be determined in an analysis solely of the claims in both cases. Different judgments are usually primarily broken down in terms of the different types of legally permissible claims. There are primarily three types of acceptable claims: performance claims, claims for declaratory judgment, and claims which address status issues.

Referring to these types of claims, one speaks of performance judgments, declaratory judgments, and status judgments. The last form of judgment will not be addressed in detail since it pertains to issues outside of the scope of the Brussels Regulation. As will be made clear below, other categorisations are also used to distinguish between different types of judgments. Moreover, the court can render different types of decisions. Swedish law makes an important distinction between judgments and decisions. A decision refers to a procedural question (eg regarding res judicata).

7 Code of Judicial Procedure, Chapter 58, section 1, paragraph 1, point 3. See Fitger, Rättegångsbalken (Norstedts Juridik, Stockholm [this is a comprehensive commentary on the Code of Judicial Procedure in several volumes in a loose-leaf system]), 58:1. 8 Code of Judicial Procedure, Chapter 58, section 1, paragraph 1, point 3. Fitger, Rättegångsbalken, 58:1. 9 NJA 1997 C 60. 10 Fitger, Rättegångsbalken, 58:1. 11 Fitger, Rättegångsbalken, 17:11.

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Swedish law requires that a claim be precise.12 In addition, the court may not adjudicate anything other than, or more than, that which has been demanded.13 This means that the ultimate order in a case granting a claim reflects a definitive claim.

The legal requirements rendering a claim permissible can have a bearing on which legal force problems are brought about by different types of judgments. It is possible that certain judgments can give rise to legal force questions which are difficult to adjudicate, while other judgments can hardly do so. It is also possible that the legal force problems are not dependant on the type of judgment.

Performance judgments

According to the main rule, a performance action may not be brought until the obligation to perform is due.14 A natural or legal person should not be subject to litigation until his failure to fulfil his or her obligation is manifest.15 Performance actions refer to a liability to pay a sum of money or perform an act, eg a certain work (specific performance). Judgments ordering payment constitute the most common type of judgments. The ultimate order states the exact amount which has been assessed. However, the simplistic nature of the ultimate order does not exclude the possibility of res judicata problems.

A performance action may also involve a claim whereby the defendant is to be prohibited from doing something or accepting something.16 Sometimes such a judgment is called an injunction (förbudsdom). In a judgment granting an injunction, the court states the specific act prohibited to the defendant. It may be described in a more detailed way. The nature of the ultimate order then becomes more complicated. A legal force problem can arise if the plaintiff, as a result of a judgment granting or denying his action, again presents a claim seeking to prohibit the defendant from performing acts which are somewhat different from those described in the first claim seeking an injunction. The new litigation can be in respect of a more extensive or a limited injunction. The difference can be attributable to different time periods. An injunction can, in such cases, give rise to difficult legal force questions if the claimant seeks a new injunction. A judgment granting an injunction may be accompanied by a fine which will attach if the defendant does not comply with the judgment.

A court may adjudicate a case where the dispute pertains to the question when a loan shall be paid. The claimant’s case can be denied because the debt is not yet due for payment. The claimant may start new proceedings when the debt is due.

Declaratory judgments

According to the main rule, a declaratory judgment action relates to the question of the existence of a defined legal relationship17 In a declaratory judgment, the court can determine, for example, whether the defendant is liable in damages or whether an agreement is valid or invalid. A declaratory judgment can, within the scope of the plaintiff’s claim and the defendant’s claims regarding interpretation, clarify the meaning of an agreement. The ultimate order then states whether a legal relationship (agreement) exists and the precise content of the legal relationship (the agreement). By virtue of his claim for declaratory judgment, the claimant can compel the court to take an explicit position on the legal relationship, for example in an action for interpretation of a contract or a tort action in which a declaratory judgment can establish the amount to be paid.

A party cannot demand that the court render an opinion in its ultimate order regarding the existence of purely factual circumstances, for example that a defendant performed a concrete act which resulted in a specific loss. In this case, a declaratory judgment action must instead address a legal relationship, for example a duty to pay damages. (However, the judgment is not – as opposed to a performance judgment – enforceable.) The claimant can allege that the

12 Code of Judicial Procedure, Chapter 42, section 2. 13 Code of Judicial Procedure, Chapter 17, section 3. 14 Code of Judicial Procedure, Chapter 13, section 1. 15 SOU [Swedish Government Official Report] 1938:44, p 180. 16 SOU [Swedish Government Official Report] 1938:44, p 180. 17 Code of Judicial Procedure, Chapter 13, section 2.

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damage-causing act as grounds and add that it includes a breach of contract by the defendant. This means that only the reasoning in support of the judgment will contain a statement of the court’s findings of proven facts. This is very significant, since legal force is limited to the ultimate order. Under Swedish law, the reasoning in support of the judgment does not have legal force. A declaratory judgment can give rise to legal force problems not only when the claimant’s action is granted but also when his action is denied. A judgment declaring an agreement invalid has res judicata effect.

A declaratory judgment action can form the basis for a subsequent performance action (and then has so-called positive legal force, see Section II below regarding this term).

Unlike arbitration awards issued in Sweden, a court’s ultimate order cannot contain a statement regarding a specific factual occurrence or a specific loss. Proven factual circumstances can lead to many different remedies and it can be difficult to predict all of the different remedies which can be made available if a certain fact is certified with legal force in a judgment.18 These legal force problems are avoided in Swedish civil litigation because a declaratory judgment action must refer to a specific legal relationship

Default judgments

Upon the claimant’s motion, a court may issue a default judgment against a defendant if the latter fails to appear at a hearing or submit a written statement of defence.19 Upon adjudication, the court assumes that the claimant’s factual allegations are true unless they are clearly untrue. The claimant’s action will be dismissed if there are no legal grounds therefor.20 The court’s adjudication is thus limited.21 A default judgment enters into force if the defendant does not apply for reopening of the case within one month.22 Default judgments which cannot be appealed any longer have the same legal force as normal judgments.

Partial judgments

When several claims are joined, the court may enter judgment on any of the claims separately (deldom), although litigation of the remaining claims is not terminated.23 Such a judgment has legal force like any other judgment. If the respondent has raised a set-off claim against the claimant’s claim, those two claims shall be adjudicated simultaneously.

Intermediate judgments

Sometimes there is a need to bifurcate the proceedings. A Swedish court has jurisdiction to do so under certain conditions. These kinds of judgments relate to so-called prejudicial questions – “threshold matters that must be resolved before other claims or issues can be determined”.24

An intermediate judgment (mellandom) is possible in three situations. If a declaratory claim is joined with a performance claim, it is possible to render an intermediate judgment regarding the declaratory claim. For example, this may occur when a landlord has lodged two claims against the tenant – one regarding the validity of the tenancy agreement and another (ie the performance claim) regarding the obligation to pay rent for a certain period of time. Both the first and the second judgments have legal force.25

18 Cf Heuman, Arbitration Law of Sweden: Practice and Procedure (Juris Publishing, New York 2003), pp 154–156. 19 Code of Judicial Procedure, Chapter 44, sections 2, 4 and 7 a. 20 Code of Judicial Procedure, Chapter 44, section 8, paragraph 2. 21 Code of Judicial Procedure, Chapter 44, section 8, paragraph 2. 22 Code of Judicial Procedure, Chapter 44, section 9. 23 Code of Judicial Procedure, Chapter 17, section 4. 24 Bader Ginsburg & Bruzelius, Civil Procedure in Sweden, p 275 et seq. 25 Code of Judicial Procedure, Chapter 17, section 5, paragraph 1.

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An intermediate judgment may also refer to one of several grounds for the claimant’s claim or one of several objections raised by the defendant. Furthermore, a court has the power to render such a judgment regarding a legal issue, such as a choice of law issue.26 In these two latter cases, the intermediate judgment will have no res judicata effect outside of the litigation,27 for example if the case is closed after the intermediate judgment is made and the plaintiff initiates new litigation claiming financial compensation, relying upon the intermediate judgment.28 The Swedish principle of the restricted “internal” res judicata effect is based upon the view that the scope of legal force must not be beyond the parties’ possibility to foresee the consequences of the res judicata effect when a judgment regarding a certain issue may have several, and unpredictable, effects.29

When the intermediate judgment is rendered the court will decide whether to allow immediate appeal and to stay the proceedings in the remaining parts.30

Court-approved settlement

If the parties settle, the claimant might withdraw his action. However, the court may confirm the settlement in a judgment where requested by both parties.31 Such a judgment has legal force and may be enforced to the extent that it imposes obligations on the parties. If the settlement agreement is unclear, the judge should highlight this for the parties so that they can clarify the agreement. Where they do not do so, the judge can nevertheless confirm the agreement in a judgment.32 This kind of unclear judgment can give rise to a legal force problem. The aforesaid is also true where the agreement contains different terms and conditions. If the defendant asserted a set-off claim, the judge should ensure that the settlement agreement makes clear that this claim falls within the scope of the judgment’s legal force. If a third party has taken certain measures and signed the settlement agreement, the confirmation should not include the third party. Accordingly, the confirmed settlement has no legal force against a third party.33

Liquidated damages judgments

A contract clause may oblige a party to pay liquidated damages if it does not carry out a contracted obligation. A Swedish court has jurisdiction to order a party to pay liquidated damages in an amount stated in the claimant’s claim. This is a performance judgment. If the contract does not provide for special sanctions in the event of breach of contract, a party may prefer to present a pecuniary claim. In practice, this is not possible in some situations, such as when the claimant moves a court to order the defendant to perform an action or to refrain from doing something. In such a case, the order must be backed up by sanctions. Upon the claimant’s request, the defendant may be ordered to perform certain acts or to refrain from doing so under penalty of fine. If the defendant fails to comply with the judgment, a court may order the defendant to pay the fine to the government. In some cases, the claimant does not request a sanction and thus there is no such sanction incorporated into the judgment. There are no res judicata rules which prevent the Swedish Enforcement Authority or a court from attaching the sanction of a fine to the judgment. Thus, the plaintiff may apply for enforcement and the Enforcement Authority may order the defendant to comply with the court order under penalty of fine.

Conditional judgments

There is no legal rule regarding conditional judgments. Accordingly, it is not completely clear whether a court can encumber a party with an obligation under a certain condition, such as when it is difficult in the future to determine whether the condition is fulfilled. Consider the case where the claimant seeks rescission of an agreement. The seller often formulates its claim such that the defendant will be obliged to repay the purchase sum in return for the goods sold. If the claimant’s claim is granted, the judgment does not mean that the defendant has an enforcement order

26 Code of Judicial Procedure, Chapter 17, section 4, paragraph 2. 27 In the literature this limited effect of the judgment has been called “intra-procedural legal force” (Fitger, Rättegångsbalken, 17:5). 28 Prop [Government Bill] 1989/90:71 p 46. 29 Fitger, Rättegångsbalken, 17:5. 30 Code of Judicial Procedure Chapter 17, section 4, paragraph 3. 31 Code of Judicial Procedure, Chapter 17, section 6. 32 Heuman, “Kan parter göra en förlikning exigibel genom att låta en skiljeman stadfästa den i en dom?”, Juridisk Tidskrift 1999–2000 p 929 et seq. and Fitger, Rättegångsbalken, 17:6. 33 Fitger, Rättegångsbalken, 17:6.

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which he can use to compel the other party to return the property he sold.34 The defendant can commence action in new litigation, but it is simpler for him to assert a counterclaim in the first litigation to require the claimant to return the property sold in the event that the defendant is ordered to repay the purchase sum.

Final decisions

A court can terminate a case without going into the merits of the controversy. It can do so for different reasons. The court’s decision is not designated a judgment but rather a final decision. According to its wording, the legal force rule applies only to judgments, not final decisions. Nevertheless, the rule can be applied analogously to certain decisions.

If a court has dismissed a dispute due to a procedural impediment in a decision which cannot be appealed any longer, then it is final and binding. One example of such a decision is when the case is dismissed because the claimant lacks standing. If a claimant attempts to have a dismissed dispute readjudicated by commencing a new action, the court must dismiss the claimant’s claim, making reference to the earlier decision to dismiss.

Where an action is dismissed because of res judicata, such a decision on the res judicata issue has a res judicata effect. The question cannot be readjudicated because it has been decided in a binding way in the final decision.

A plaintiff may withdraw its claim, for instance when the plaintiff predicts that it will lose the case. Then, the court will issue a final decision terminating the proceedings.

A final order issued because the claimant has withdrawn his action does not prevent the claimant from commencing a new action. The defendant can prevent a second litigation by requesting that the first case be determined by a judgment.35 Such a judgment will bar new litigation. If the defendant believes that he will prevail in the first litigation, he may prefer to have the case resolved once and for all. The judgment denying the claim prevents the claimant from commencing the action again, for example when he later acquires access to new evidence in support of his case.

Summary litigation

Cases in respect of undisputed claims can be resolved in a simplified manner by the Swedish Enforcement Authority (Kronofogdemyndigheten). If the defendant fails to contest the claimant’s demands after the defendant has been served with the summons, an order of enforcement is issued. This has the same legal force as regular judgments.36 Under Swedish law, the Enforcement Authority is not a court and, consequently, decisions issued by it do not fall within the scope of Article 1 of the Brussels Regulation. However, a separate provision in Article 62 of the Brussels Regulation makes clear that these Swedish decisions must be recognised in the same way as court judgments.37

Decisions in respect of interim measures

Swedish courts can enter decisions regarding different types of interim measures.38 One example of this is a sequestration order which seeks to ensure enforcement of a future judgment for payment where there is a risk that the defendant will conceal its assets. In Sweden, this type of order is executed by the Enforcement Authority upon

34 NJA 1991 s. 173, and Heuman, Specialprocess (6th edn Norstedts Juridik, Stockholm 2007) p 121. 35 Code of Judicial Procedure, Chapter 13, section 5. 36 Section 65, Injunctions to Pay and Mutual Assistance Act.. 37 Pålsson, Brysselkonvention, Luganokonventionen och Bryssel I förordningen (Norstedts Juridik, Stockholm 2002), pp 52 and 234 and, in respect of the Brussels Regulation, Article 34.2, p 243 et seq. 38 A decision in respect of an interim measure constitutes a judgment under Article 32 of the Brussels Regulation. A Swedish sequestration order can thus be executed in another member state under certain circumstances. It is difficult to see what is meant by a Swedish order in respect of an interim measure being recognised by a court in another member state. Even in an exceptional case where the claimant would need to acquire recognition of a Swedish order in a foreign court, the foreign court can, based on Article 37.1, stay the application as soon as the opposing party shows that he has applied for readjudication of the Swedish order.

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application by the claimant. The court decision does not have any legal force. Upon a party’s application, a decision granting or denying such an application can be readjudicated by the court which issued the order.39

39 NJA 1993 s. 108.

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II. Preclusive effects

This part of the questionnaire is concerned with the effects of a judgment (including, for this purpose, any statement of the reasons given for a judgment) insofar as it restricts the ability of the participants in the proceedings in which it was given, or related or non-related persons, to bring or conduct later proceedings (whether or not forming part of the same action) as they would wish. In particular, this section is concerned with so-called rules of "res judicata" or their equivalent. References to "Claimant" are to the person seeking a remedy from the court, and references to "Defendant" are to the person against whom a remedy is sought.40 The terminology used in this intended for guidance only and is not intended to exclude or restrict discussion of the legal concepts and terms which are relevant to your legal system. This section is not concerned with the evidential status of the record of judgment, nor with the value of judgments as a legal precedent for future cases (stare decisis), both of which fall outside the scope of this Project. For the purpose of drafting the questionnaire, a distinction has been drawn between "claim preclusive effects" (see Part II.A) and "issue preclusive effects" (see Part II.B). These are intended to be descriptive categories, the former (which might also be described as "same claim preclusion") embracing rules of preclusion affecting the raising of claims which a legal system considers to have been determined in earlier proceedings and the latter embracing rules of preclusion affecting attempts to re-open issues of law or fact which a legal system regards as having already been determined in earlier proceedings. A third category of "wider preclusive effects" has been used (see Part II.C) to accommodate rules of preclusion which are considered to fall into neither of these categories. Those co-ordinating the Project recognise, however, that different legal systems will approach the categorisation differently depending on how they define the concepts of “claim” and “issue”, and that terminology will vary (e.g. in England, reference is made to "cause of action estoppel", "issue estoppel" and to various other rules, including "abuse of process"). Rapporteurs are thus encouraged to be flexible and to fit their description of the law and practice of their legal system into the framework established below as they think most appropriate.

A. Claim preclusion

1. Existence and nature of claim preclusive effects Are judgments in your legal system capable of having claim preclusive effects?

Summary:

In Sweden, the terms ‘legal force’ and ‘res judicata’ are to some extent used synonymously. Legal force can either be negative or positive. Negative legal force is also called res judicata and means that the first judgment prevents the initiation of new litigation on the same matter. Negative legal force is considered procedural in nature. The court will render a final decision (and not a judgment) dismissing the claim. Positive legal force means that a new judgment in subsequent litigation will be based on the legal relationship established in the first action. This is sometimes referred to as a judgment’s ‘prejudicial effect’ or “substantive res judicata”. Although this positive legal force bears some resemblance to issue preclusion, it is not issue preclusion in the strict sense. In order for an issue to gain positive legal force, the issue must have been part of the relief sought, ie the legal relationship must occur in the operative part of the judgment. The reasoning as such in a judgment has no legal force. In principle only declaratory judgments acquire positive legal force – Although the preclusive effects are procedural in nature, one may argue that the preclusion may be substantive in nature as well, owing to the fact that the parties’ behaviour is influenced by a judgment.

Full response:

Introduction – Generally regarding legal force

In Swedish law, the terms res judicata and “legal force” (rättskraft) are, to some extent, used as synonyms. However, the term “legal force” can be said to be somewhat broader than res judicata (to which we will soon return). The Code of Judicial Procedure Chapter 17, section 11 on legal force, which can be said to be a type of general clause due to its “imprecision”, provides:

40 Thus, for example, a person named as Defendant in legal proceedings who advances a counterclaim should be treated as "Defendant" for the purposes of the main claim against him (including, for example, any true defence of set-off) and "Claimant" for the purposes of the counterclaim.

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“Upon the expiration of the time of appeal, a judgment acquires legal force to the extent that it determines the matter at issue in respect of which the action was instituted.

A judgment also has legal force to the extent that it adjudicates a debt claimed as a set-off.

A question thus determined may not be adjudicated again.

Specific provisions apply to extraordinary appeals.”

Legal force in civil law cases is usually described with the help of three limitations. Firstly, one speaks of an objective limitation. This means that only “the matter at issue” (“saken”) falls within the scope of the legal force.41 (However, “the matter at issue” can also include claims and causes of action which are never asserted in the litigation.) Secondly, legal force is limited in time. If new facts arise after the entry of judgment, such facts can result in the commencement of new litigation (doctrine of facta supervenentia). Finally, as a general rule, legal force does not apply vis-à-vis third parties, which is the subjective limitation.42

With respect to the objective limitation on the judgment’s legal force, one draws a distinction in Swedish law between “negative legal force” (negativ rättskraft) and “positive legal force” (positiv rättskraft). The distinction between “claim preclusion” and “issue preclusion” is not used in Swedish law. Furthermore, the moiety of positive legal force and negative legal force does not directly reflect “claim preclusion” and “issue preclusion”.

Negative legal force – which is also called res judicata – means that the first judgment prevents the initiation of new litigation on the same matter at issue. The negative legal force has been described as “procedural”.43 Accordingly, an action addressing the same matter at issue must be dismissed. The court will render no formal judgment but only a decision. This means that the proceedings will be terminated and that the court will not give the parties the opportunity to plead and present their cases. The term “dismiss” will in the following be used to describe such a decision (as opposed to a judgment, which grants or denies/rejects the plaintiffs claim).

Both performance judgments and declaratory judgments have negative legal force.

One usually says that in principle, only declaratory judgments can have “positive legal force”.44 This type of legal force entails that a new judgment in a subsequent litigation will be based on the legal relationship established in the judgment of the first litigation. A common example of this is as follows. By virtue of a declaratory judgment, a claimant has been declared to have title to land superior to that of the defendant. The defendant later clears the forest on the property and the claimant seeks compensation for this in new litigation. The court must then proceed from the holding in the previous judgment in respect of the question of title.45

Positive legal force can also sometimes arise as a consequence of performance judgments. This occurs in conjunction with the effect of legal force vis-à-vis third parties and in conjunction with readjudication as a result of facta supervenentia (see section II, 5 and 9).

41 It is important to notice that “the same matter at issue” is a juridico-technical concept. However, other translations of the Swedish expression “saken” (literally “the thing”) are conceivable. Thus Lindell, Civil procedure in Sweden, p 124, uses the term “subject matter”, whereas Bader Ginsburg & Bruzelius, The Swedish Code of Judicial Procedure – volume 15, The American Series of Foreign Penal Codes (Sweet & Maxwell Limited, London 1968), p 75, use the expression “the particular matter concerning which the action was instituted”. In the official Swedish version of the Brussels Regulation (article 27) the expression “the same cause of action” has been translated into “samma sak” (literally “the same thing”). 42 Lindblom, Miljöprocess II (Iustus förlag, Uppsala 2002), p 510 et seq. 43 Bader Ginsburg & Bruzelius, Civil procedure in Sweden, p 307. – The expression “formal legal force” was previously used to denote the fact that the judgment could no longer be subject to appeal. However, this expression is no longer in use, see Ekelöf, Rättegång III (7th edn Norstedts Juridik, Stockholm 2006), p 175 footnote 15. 44 Lindell, Civilprocessen (2nd edn Iustus Förlag, Uppsala 2003), p 323 and Lindblom, Miljöprocess II, p 511. 45 Ekelöf, Rättegång III, p 185.

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To some extent, positive legal force bears a resemblance to issue preclusion. However, it must be underscored that in order to acquire positive legal force, an issue must have been part of the remedy sought (ie “the matter at issue”) in the first case. In other words, it is not sufficient that the first court only addressed the question as an element in its reasoning to arrive at its decision. Pursuant to Swedish law, the reasoning in a judgment has no legal force.46

The term “positive legal force” may be somewhat misleading.47 Instead, one often speaks of the judgment’s “prejudicial effect”. One also speaks of “the substantive effect of res judicata”.48 Certain authors have asserted that the question of the judgment's positive or prejudicial effect has nothing at all to do with legal force or procedural law but should rather be classified as the judgment's “civil law significance”.49 Nevertheless, the majority of authors in the field of procedural jurisprudence see this as a question of legal force. However, the problem of systematically drawing distinctions between procedural law and substantive law can arise, particularly regarding the legal force of the judgment vis-à-vis a third party (see sections 9 and 10).

The general interpretation seems to be that the provisions of Chapter 17, section 11 of the Code of Judicial Procedure only address negative legal force and that the judgment's prejudicial effect arises therefrom by analogy.50 Moreover, the plain language of Chapter 17, section 11 of the Code of Judicial Procedure includes only judgments, not decisions. To a certain extent, however, res judicata rules are applied by analogy to certain decisions.51

The nature of the preclusive effects

Chapter 17, section 11 of the Code of Judicial Procedure contains only one legal consequence: The “question thus determined may not be adjudicated again.” This entails, first and foremost, that the court must dismiss a new claim regarding the same matter at issue.52 Moreover, this provision can be deemed (by analogy) to provide support for the proposition that judgments can have positive legal force.

One can also say that the decision itself influences the rights/obligations which formed the basis for the party's claim. Assume that a creditor claims that a debtor must pay a sum of money as a result of a loan agreement. The debtor contests the claim and alleges that he has already repaid. Regardless of whether the judgment grants or denies the claim, in the future, the legal relationship between the parties will be governed by the judgment. The judgment means that both the loan agreement and any payments have lost their judicial significance. 53 However, this effect, which can perhaps be called substantive, appears instead to result from the fact that the judgment cannot be readjudicated.

2. Policies underlying claim preclusive effects What are the policy considerations for the claim preclusive effect of judgments in your legal system?

Summary:

Claim preclusive effect is based on considerations of (1) party security (which may be likened to legal certainty); (2) public faith in the stability of judgments; and (3) judicial economy.

Full response:

46 Ekelöf, Rättegång I (8th edn Norstedts Juridik, Stockholm 2002), p 45 and Fitger, Rättegångsbalken, 17:11. – In order to determine the remedy sought (ie the matter at issue) one must look at both the claim and the grounds alleged in the claimant's case. The court must, of course, address the grounds in the reasoning. 47 Ekelöf, Rättegång III, p 185. 48 Lindell, Civilprocessen, p 123. 49 This interpretation was advanced by Karl Olivecrona, see Ekelöf, Rättegång III, p 186 footnote 53. 50 Ekelöf, Rättegång III, p 188. 51 Fitger, Rättegångsbalken, 17:11. 52 Ekelöf, Rättegång III, p 183. 53 Ekelöf, Rättegång III, p 180.

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Various justifications for legal force have been proffered in legal literature. Attempts to explain it in terms of “justice” or “the truth” have shown themselves to be unsupportable, since even “substantively erroneous” judgments can acquire legal force.54

The Swedish Supreme Court has declared that the primary purpose of legal force is to create “security and promote the interests of judicial economy”.55 Certain authors justify the legal force of the judgment by reference to due process.56

The meaning of “security” has been the subject of some discussion. According to one view, it is the prevailing party whose security is satisfied. The person who has had his or her claim granted by a court knows that the judgment will stand unless it is appealed. Moreover, a defendant who has prevailed in the case achieves security because the claimant cannot be subjected to a second litigation.57

If a claimant seeks compensation in an amount less than that to which he is entitled, he has no right to later bring a claim for the remainder. This may concern a damages action wherein the claimant sought insufficient damages in the first litigation. Legal force thus provides security for the losing party; he knows that he cannot be required to pay more than he was ordered in the judgment.58

It has also been asserted that the legal force rules afford security to parties other than the litigants.59 A third party who has entered into a contract with the claimant or the defendant can benefit, in his contractual relationship, from the establishment of a certain legal relationship between the litigants. For example, the judgment can clarify that the conditions will exist to enable the claimant to fulfil his delivery obligations to a third party.

From a societal perspective, the security function entails, first and foremost, the creation of the public faith in the stability of judgments.60 In the final analysis, this can be of socio-economic significance. For example, the legal force rules can contribute to an effective credit system since creditors dare to lend money.61

The legal force tenet can also be justified on the grounds of judicial economy. The avoidance of additional trials on the same issue saves money for both the State and the parties.

Since the claimant and the defendant do not have a “second chance”, they are compelled to conduct their case in court with the greatest care. The costs of dispute resolution are held down as there will be no second litigation. A careful litigation process also contributes to substantively correct resolution of the disputes.62 When the claimant is compelled to carefully prepare litigation, he may realise that he should not commence action because he has no possibility of prevailing in the litigation.63

However, the legal force rule can sometimes increase the costs of litigation; the parties pursue their case with exaggerated attention to detail because they know that they cannot return with new grounds and additional evidence in a second litigation.

3. Conditions for claim preclusive effects What are the conditions for the claim preclusive effects of a judgment?

54 Olivecrona, Rätt och dom (PA. Norstedts & Söners Förlag, Stockholm 1960), p 252. 55 NJA 1984 s. 733 (p 735). 56 Lindblom, Miljöprocess II, p 656. 57 Ekelöf, Rättegång III, p 178. 58 Ekelöf, Rättegång II, p 165. 59 Fitger, Rättegångsbalken, 17:11. 60 Lindblom, Miljöprocess II, p 527. 61 Ekelöf, Rättegång I, pp 18 and 84 and Rättegång III, p 178. 62 Ekelöf, Rättegång III, p 178. 63 Lindblom, Miljöprocess II, p 528.

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Summary:

To trigger the claim preclusive effects of a Swedish judgment, two fundamental criteria must be satisfied: (1) the second case must concern the same ‘matter at issue’ as the first, and (2) the time for appeal must have passed without an appeal having been made. The term ‘matter at issue’ has been interpreted by the Swedish Supreme Court generally to focus on the remedy requested which means that the judgment will have preclusive effect in relation to all circumstances which can be alleged as support for the same remedies, regardless of whether they have actually been alleged. This preclusion also applies to quantitative changes in a claim with respect to the amount of damages requested. To determine what is the remedy claimed (or the ‘concrete remedy’), one must look to the actual claim and the facts alleged in its support. The Supreme Court has interpreted legal force to include the same remedy and remedies which are alternative and financially equivalent to the remedy in the first action. Cumulative remedies, by contrast, are not precluded in a subsequent action based on the same set of circumstances.

Full response:

Swedish law contains two fundamental criteria for triggering the claim preclusive effects of a judgment in subsequent proceedings. Both requirements emerge from the legal force rule. Firstly, both cases must concern the same “matter at issue”. Secondly, the time for appeal for the first judgment must have passed without an appeal having being made. In addition, the main rule is that legal force binds only the parties to the case.64 However, there is no express rule to this effect in the Code of Judicial Procedure. (The effects of legal force on third parties is addressed in II A 9–10).

It is simple to decide whether the time to appeal has elapsed. Moreover, in the event that it has not done so, the lis pendens rule set forth in Chapter 13, section 6 of the Code of Judicial Procedure prevents a court from trying the case again. If the first judgment has been appealed, the new action in respect of the same “matter at issue” will be dismissed due to lis pendens. The criteria of lis pendens are fundamentally identical to the criteria for negative legal force.65

It is difficult to find a general definition of the “matter at issue”. The text of the Code does not define the term. Neither is the legislative history of the Code of much help in this respect.66 The Swedish Supreme Court, in conjunction with identifying “the matter issue”, has stated that the way in which the claims in both cases are formulated is of major significance in this assessment, and that grounds alleged must, as a rule, also be taken into consideration.67

The term “the matter at issue”

There are, primarily, two views in the legal literature regarding how to determine what is meant by “the matter at issue”. According to one view, the decisive criterion is whether the two actions concern the “same course of events” or “set of facts”. According to the other view, the decisive question is whether the two actions concern the same “remedy”.68 The difference between these two perspectives can be clarified with an example. 69

In a dispute regarding the invalidity of a will, it is alleged in the first litigation that the will is invalid due to a formal defect, in that it was only witnessed by one person (according to Swedish law, a will must be witnessed by at least two persons). This claim is denied by the court. In the second litigation, the claimant again seeks a declaration of invalidity of the will, but the grounds are now that the deceased was mentally ill. According to the first view, this concerns different issues, since it concerns different courses of events or sets of facts. According to the second view, the same remedy – the invalidity of the will – is at issue in both cases and thus the second case should be dismissed.

The Swedish Supreme Court has, with certain modifications which we will address in a moment, embraced the view which sees “the remedy” as the decisive criterion.70 Accordingly, the judgment has preclusive effects insofar as it pertains to all circumstances which can be alleged as support for the same remedies regardless of whether they are

64 Ekelöf, Rättegång III, p 230. 65 Ekelöf, Rättegång III, p 270. 66 NJA II 1943 s. 218. 67 NJA 1977 s. 618. 68 Lindblom, Miljöprocess II, p 518 et seq. and Ekelöf, Rättegång II, p 198 et seq. 69 Ekelöf, Rättegång II, p 137. 70 See NJA 1959 s. 658 and NJA 1999 s. 520.

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alleged. In other words, it would not be possible to commence the second litigation regarding the invalidity of the will.

Moreover, all quantitative changes of a claim are precluded. It is thus not possible for a plaintiff to bring a second litigation by decreasing or increasing the amount sought. The Swedish Supreme Court has also held that certain remedies other than those which are covered by the pleadings in the case can be precluded by virtue of the judgment. However, one condition is that those remedies are alternatively and financially equivalent with the remedies sought in the first litigation.71

The term “remedy”

In principle, all legal rules contain a legal consequence. In the field of private law, those legal consequences might be called remedies. The remedies are expressed in abstract form. When they arise in an individual case, they are concrete. The same abstract remedy, for example rescission, can of course form the basis for an infinite number of concrete remedies.

The remedies that can arise as a result of an event (a purchase, an injury, etc.) are often made clear by the civil law provisions. Sometimes, a rule provides for several abstract alternatives or cumulative remedies. Pursuant to the Sale of Goods Act, a buyer of defective goods may, under certain specified conditions, seek either rescission, a price reduction or compensation for cost of remediation. These constitute different abstract remedies. If they arise in a dispute, there will be different concrete remedies.

If a concrete remedy has already been the subject of litigation, the judgment's legal force will prevent a new action in respect of the same concrete remedy. It is sometimes difficult to define “a concrete remedy” and there is no generally applicable criterion in respect of what constitutes one as opposed to several concrete remedies.72 In order to resolve this question, one must look at both the actual claim in the case and the facts alleged in support of the claim.73

If different abstract remedies form the basis for the first and second cases, the concrete remedies are also different. But if the same abstract remedies lie “at the root”, one must ask whether, as a result of the alleged facts, the defendant can be ordered to make only one performance or two performances. If only one performance is possible, it is matter of the same (concrete) remedy. This applies even if different facts are alleged as a basis for the two different claims. As a result, the second action must be dismissed since it addresses the same matter at issue pursuant to the res judicata provision.74

Examples from tort law and contract law can illustrate the foregoing discussion.

Chapter 5, section 1 of the Tort Liability Act states that a party who has suffered from a tortious act is entitled to compensation for, inter alia, costs of medical care and lost income. These items of compensation can be regarded as different losses, each of which gives rise to a right in damages.75 In other words, pursuant to the prevailing view,76 it is a question of distinct remedies. The claimant can thus choose whether to divide the heads of damages into different trials, notwithstanding that the same tortious act forms the basis for both claims. However, as pointed out earlier, it is not possible to bring a second action in respect of the same remedy (eg medical costs) by only changing

71 NJA 1999 s. 520. 72 Ekelöf, Rättegång III, p 208. 73 Lindblom, Miljöprocess II, pp 538 and 519 and NJA 1977 s. 618 and Heuman, Bevisbörda och beviskrav (Norstedts Juridik, Stockholm 2005), p 106. 74 Ekelöf, Rättegång III, p 195 and Fitger, Rättegångsbalken, 13:3. 75 See Ekelöf, Rättegång III, p 213 et seq. 76 Ekelöf, Rättegång III, p 214 et seq. In respect of damage under environmental law, a different model for the provisions of legal force has been suggested; see Lindblom, Miljöprocess II, p 648 et seq.

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the amount of damages sought.77 Medical costs which pertain to a certain period can probably not be demanded in two separate actions since they presumably concern the same remedy under the Act.

In the area of contract law, it happens that different defects in the property purchased or the service executed give rise to different claims. When they can be granted concurrently, they constitute distinct 78 concrete remedies.79 It is, however, difficult to give any exact fixed points for what should be regarded as a single defect. In the final analysis, one is compelled to look at the course of events and investigate whether there is a sufficiently strong connection between the defects such that they can be regarded as constituting a single defect.80 Accordingly, the fact that it concerns the same contractual relationship is, per se, insignificant. A purchaser of a property who, in initial litigation, seeks a price reduction due to a defect in the roof has been afforded the right to bring a second action claiming a price reduction due to a defect in the outer wall.81 At which point in time the plaintiff acquires knowledge of the other defect is irrelevant as to the legal force.

In a case from 1999,82 the Swedish Supreme Court held that even alternative remedies which are financially equivalent are precluded by virtue of the first judgment even if they never were claimed in the first litigation.

Legal force as formulated by the Swedish Supreme Court thus means that the legal force includes the same remedy and remedies which are alternative and financially equivalent83 to the first remedy. The meaning of the term “financially equivalent” is not completely clear and the introduction of this criterion has been criticised.84

Price reductions, compensation for cost of rectification and rescission are alternative remedies pursuant to Swedish sale of goods law. Moreover, it appears that the Swedish Supreme Court regards these remedies as “in principle” financially equivalent. Accordingly, these remedies cannot be alleged in separate actions. The legal force rule can thus become rather strict vis-à-vis the purchaser; this was made clear in a Swedish Supreme Court judgment from 1995.85 In that case, due to a civil law statute of limitations regarding rescission, the court denied a claim for rescission of a purchase of property.86 Claims for price reductions and damages are not time barred as claims for rescission. However, for res judicata reasons the purchaser was not entitled to seek a price reduction for the same defect in a new litigation.

On the other hand, it is possible under Swedish contract law, to be awarded damages for consequential losses caused by the defect in addition to compensation for, eg, a price reduction. This right to damages is, accordingly, not alternative but rather cumulative, and can arise concurrently with, eg, rescission or price reduction. Consequently, this remedy is not precluded pursuant to the Swedish Supreme Court's formulation of legal force. The claimant/purchaser can therefore consciously choose to save a separate, cumulative claim for later litigation, notwithstanding that it arose from the same purchase – indeed, from the same defect as in the first litigation.87

77 Lindblom, Miljöprocess II, p 538. 78 NJA 1999 s. 520. 79 See NJA 1984 s. 733 and NJA 1999 s. 520, Ekelöf, Rättegång III, p 215 et seq and Nordh & Lindblom, Kommentar till RB, häfte II, (Iustus Förlag, Uppsala 2003), p 207 et seq. 80 See Lindell, Civilprocessen, p 313 and NJA 1984 s. 733 and NJA 1999 s. 520. 81 NJA 1984 s. 733. 82 NJA 1999 s. 520. 83 According to Ekelöf, this idea originates in German legal literature, Rättegång III (6th edn, Norstedts Juridik, Stockholm 1994), p 143 footnote 180. 84 Nordh, “Är endast olika rättsföljder som är likvärdiga samma sak?“, Svensk Juristtidning 2001 p 665. See also Pauli, “Preklusion av icke framställda alternativa yrkanden samt förhållandet mellan RB 13:6 och 14:3”, Juridisk Tidskrift 2001–02 p 394 et seq. 85 NJA 1995 s. 610, of which case NJA 1999 s. 520 can be said to be a further development. 86 Pursuant to Chapter 4, section 9 of the Land (Real Property) Code, a purchaser of real property shall commence action for rescission within one year of taking possession. 87 However, the minority in NJA 1999 s. 520 opined that a claimant cannot “reasonably” retain this right when he could just as well have alleged it in the first litigation.

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In the area of environmental law, the foregoing means that a claim for an injunction against certain activities in the first litigation can be followed by new litigation in respect of damages due to the operation at issue without being barred by the legal force of the injunction. This applies notwithstanding that the claim for damages could just as well have been presented in the first litigation.88 According to legislation in the area, these remedies (injunction and damages) are cumulative.

Another example of non-alternative, ie cumulative, remedies appears in a Swedish Supreme Court judgment from 1999.89 In that case, a tenant had a sauna installed in his apartment bathroom. In the first trial, the landlord sought to evict the tenant due to the fact that he had damaged the apartment. The claim was denied. The landlord subsequently commenced a new action in which it was seeking to compel the tenant to remove the sauna. The Swedish Supreme Court noted that the two claims indeed concerned the same state of affairs but that different remedies were at issue in the cases. The new case was therefore allowed to proceed.

With respect to the validity of a contract, in a case in 1985,90 the Swedish Supreme Court stated that if the validity of a contract is established by virtue of a judgment, the question of validity cannot be addressed anew. This case could possibly indicate that if a purchaser of property first seeks rescission of the purchase agreement due to a defect and the claim is denied, he cannot file a new claim for rescission based on a different defect. The opposing view – based on the fact that it should be deemed to concern two different (concrete) remedies – is, however, also represented in the legal literature.91

4. Invoking claim preclusive effects Please describe how the claim preclusive effects of a judgment are invoked in your legal system.

Summary:

A defendant who wishes to assert a procedural objection such as res judicata (ie negative legal force) must do so in his statement of defence. However, he does not forfeit the right to object on such grounds later in the proceedings (even in a court of appeal), but may be subject to increased liability for litigation costs. Theoretically, the court is sua sponte required to take notice of the prior judgment’s res judicata effect, although in practice this is difficult without a party having entered an objection based on preclusion. The party raising the issue of preclusion generally has the burden to prove the legal force of the first judgment (if it is not only a matter of law). Procedural impediments such as res judicata must be adjudicated by the court as soon as they become apparent to the court and thus may be passed upon as early as case preparation.

Whether or not the court has an obligation to observe the positive legal force sua sponte is disputed in the legal literature.

Full response:

Pursuant to Chapter 42, section 7 of the Code of Judicial Procedure, the defendant must assert his procedural objections (eg res judicata) in the statement of defence. However, a party who fails to do so does not forfeit the right to later object on the grounds of res judicata. The only sanction for a failure to comply with the provisions of Chapter 42, section 7 of the Code of Judicial Procedure is a risk of increased liability for litigation costs pursuant to Chapter 18, section 6 of the Code of Judicial Procedure. Pursuant to Chapter 17, section 11 of the Code of Judicial Procedure, paragraph 3 and Chapter 34, section 1 of the Code of Judicial Procedure, the court must sua sponte take notice of the judgment's negative legal force and thus dismiss an issue which is res judicata without any objection by a party.92 There is accordingly no deadline by which a party must allege that the issue has been determined with legal force. In accordance with the aforesaid rule, a Court of Appeal is also required to assess sua sponte whether the issue is res judicata.93 However, in practice, the court has a very limited possibility of taking notice of the issue of res judicata if an objection is not raised.

88 Lindblom, Miljöprocess II, p 552. 89 NJA 1999 s. 656. 90 NJA 1985 s. 172. 91 Nordh & Lindblom, Kommentar till RB, häfte II, p 208 footnote 10. 92 Ekelöf, Rättegång III, p 187. 93 Whether the positive legal force also must be observed sua sponta is somewhat disputed. However, the prevailing view seems to be that the court should observe it sua sponte. See Ekelöf, Rättegång III, pp 186–188 and Lindell, Civil Procedure in Sweden, p 123.

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A discussion regarding where the burden of proof lies is often of less significance when the duty to investigate lies, at least primarily, with the court.94 In practice, the party making the objection must state the judgment to which he refers. As a rule, the party submits the judgment to the court.95 In principle, only a question of law will arise, namely whether and to what extent the judgment has any legal force effects. The question of burden of proof does not arise since there is normally no uncertainty regarding the actual facts; the content of the earlier judgment is proved by virtue of its submission to the court.

The parties are free to argue the legal issue, ie the res judicata question. As noted above (section II, A 3), in conjunction with this assessment, the court can not limit the enquiry to a comparison between the ultimate order in the first judgment and the order sought in the new litigation. In assessing the identity of the matter at issue, the claim and the grounds in the earlier litigation must be compared with the claims and the grounds in the later litigation.

The court must adjudicate questions of procedural impediments as soon as a reason therefore arises.96 A question of res judicata can therefore be submitted for adjudication as early as during the preparation of a case. Any decision of the court dismissing the action can be appealed.97 Even the court's decision to reject an objection on procedural grounds may, in certain cases, be appealed prior to a substantive disposition of the case.98 Under these circumstances, the adjudication of the case in other respects is normally stayed pending the entry into force of the decision regarding the motion to dismiss.99 The justification for these rules is that administration of the substantive issue becomes meaningless if it is later shown that the claimant's case must be dismissed.100

5. Exceptions to claim preclusive effects Please verify whether the claim preclusive effect of judgments in your legal system is subject to generally accepted exceptions.

Summary:

The two most significant exceptions to the principle that non-appealed judgments are final are: (1) the extraordinary appeal, and (2) retrial due to subsequent facts (facta supervenientia). The extraordinary appeal may be based on either relief from substantive defects (resning), restoration of time expired (återställande av försutten tid), or relief from grave procedural errors (domvilla). There is no explicit public policy exception in Swedish procedural law. ECHR may be relevant when deciding if a grave procedural error has been made by a court. – Facta supervenientia can only be based on new legal facts (rättsfaktum). Furthermore, it must be the case that inclusion of the new fact in the previous litigation would have led to a different result in the case. A legal fact is a fact decisive for the outcome of the case in the sense that a remedy is directly linked to it. In order to constitute factum superveniens, the fact must have occurred after the case was concluded and submitted for judgment. A fact that existed prior to judgment but was unknown to the parties does not constitute a factum superveniens, however, re-trial (resning) may be granted depending on the circumstances.

Full response:

When a judgment can no longer be appealed it is final. However, there are certain exceptions to this principle.101 Practically speaking, the most significant exceptions are the extraordinary appeal and retrial due to subsequent facts, facta supervenientia.

As noted above, legal force requires that the matter be tried on the merits. This entails that, eg, dismissal decisions based on the lack of jurisdiction of the court or a decision to dismiss due to withdrawal of the claim do not acquire

94 Lindblom has (with reference to Kallenberg) asserted that it is most “appropriate” that the defendant bear the burden of proof for an objection that the issue is res judicata, see Processhinder, p 110. 95 There is no legislated requirement that a party must submit the previous judgment or any other document. 96 Chapter 34, section 1 of the Code of Judicial Procedure. 97 Chapter 49, section 3 of the Code of Judicial Procedure. 98 Chapter 49, section 4 of the Code of Judicial Procedure. See also Ekelöf, Rättegång II, p 16 and Rättegång V (7th edn Norstedts Juridik, Stockholm 1998), p 202. 99 Chapter 49, section of the Code of Judicial Procedure. Ekelöf, Rättegång III, p 202. 100 Ekelöf, Rättegång III, p 16. 101 Welamsson, Rättegång VI, (2d edn Norstedts Juridik, Stockholm 1994), p 191.

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legal force in respect of the matter at issue. On the other hand, the decision to dismiss acquires legal force in respect of the issue which led to the dismissal.102

Extraordinary appeals

Swedish law views the unconditional upholding of a judgment that appears substantively erroneous or has arisen in disregard of significant procedural safeguards, as offensive to the sense of justice and corrosive of faith in the administration of justice. This is one of the reasons behind the rules regarding extraordinary appeals. The provisions entitle a party, in certain exceptional cases, to seek leave for retrial of judgments that can no longer be appealed.103

There are three primary different extraordinary appeals of judgments: relief for substantive defects (resning),104 restoration of time expired (återställande av försutten tid),105 and relief for grave procedural errors (domvilla).106

Common to the extraordinary appeals is that, in principle, they can be exercised only after the time for ordinary appeal has elapsed.

Chapter 58, section 1, paragraph 1 of the Code of Judicial Procedure, states the conditions for a new trial and provides as follows:

“After a judgment in a civil case has entered into final force, relief for a substantive defect may be granted for the benefit of any of the parties:

1. if a member of the court or an officer employed at the court, in respect of the case, is guilty of criminal conduct or neglect of official duty or if an attorney or a legal representative is guilty of an offence with regard to the case, and the offence or neglect of duty can be assumed to have affected the outcome of the case;

2. if a written document presented as proof was forged, or if a party examined under truth affirmation, or a witness, expert, or interpreter gave false testimony, and the document or statement can be assumed to have affected the outcome;

3. if a circumstance or item of evidence that was not presented previously is invoked and its presentation would probably have led to a different outcome; or

4. if the application of law forming the basis of the judgment is manifestly inconsistent with a statutory provision.

Relief for a substantive defect may not be granted on the basis stated in item 3 unless the party shows probable cause that he was unable to invoke the circumstance or item of evidence in the court that pronounced the judgment or on appeal therefrom or he otherwise had a valid excuse for failing to do so.”

A decision regarding a new trial entails that the adjudicated matter at issue will be addressed anew. Indeed, the purpose of a new trial is to have the judgment which was issued replaced by another one, but a decision regarding a new trial does not perse vacate the issued judgment. In exceptional cases, a judgment which is clearly erroneous can be changed in conjunction with a decision regarding a new trial.107

Chapter 58, section 11 of the Code of Judicial Procedure governs the fundamental conditions for restoration of the time expired as follows: “If a person has missed the time applicable to appeal against a judgment or decision or for reopening or reinstatement, and if he had legal excuse, on application by him the expired time may be restored.”

102 Fitger, Rättegångsbalken, 17:11. 103 Code of Judicial Procedure, chapters 58 and 59. See Welamsson, Rättegång VI, p 191. 104 See Chapter 58, section 1–10 a and 14 of the Code of Judicial Procedure. 105 See Chapter 58, sections 11–14 of the Code of Judicial Procedure sections and Welamsson, Rättegång VI, p 191 et seq. 106 See Chapter 59, sections 1–5 of the Code of Judicial Procedure. 107 Fitger, Rättegångsbalken, introduction to Chapter 58.

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This entails that a party who has not had time to appeal a certain decision and who has a valid excuse therefor acquires a new deadline for appeal and thereby the possibility to continue the litigation.108

Chapter 59, section 1 of the Code of Judicial Procedure regarding relief for grave procedural errors provides as follows:

“A judgment that has entered into final force shall be set aside for grave procedural errors on appeal by the person whose legal rights the judgment concerns:

1. if the case was entertained although a procedural impediment existed that a superior court is obliged to notice on its own volition [i e sua sponte];

2. if the judgment was given against someone who was not properly summoned or did not appear in the case; or if the rights of a person who was not a party to the action are adversely affected by the judgment;

3. if the judgment is so vague or incomplete that the court's adjudication on the merits cannot be ascertained therefrom; or

4. if another grave procedural error occurred in the course of the proceedings that can be assumed to have affected the outcome of the case.

An appeal for relief for a grave procedural error pursuant to paragraph 1, clause 4, founded on a circumstance not previously invoked in the case shall be dismissed unless the appellant shows probable cause that he was unable to invoke the circumstance in the proceedings or otherwise had a valid excuse for failing to do so.”

There is no party autonomy when it comes to matters of res judicata.109 A joint request by the parties that the court shall retry the matter at issue without regard to the preceding judgment has no procedural effect.110 An opposing party's consent to the motion for a new trial or a party's admission that certain grounds for new trial exist cannot form the basis of the decision. It is another matter if the parties can dispose of the subject matter of the dispute by agreement and thereby bring about a new judicial determination of essentially the same issue. See below regarding factum superveniens.

As noted above a judgment must state “the reasoning in support of the judgment, including a statement of what has been proved in the case”.111 The provision on setting aside vague judgments112 does not, however, primarily address lack of reasons in the judgment but rather, first and foremost, the ultimate order. It is rare that the judgment is so vague that it can be vacated. In those cases in which it is difficult to determine whether a judgment really is vague, the reasoning in support of the judgment is significant in establishing what the ultimate order means.113 For this reason, the provision can, to some extent, be said to indirectly include cases where the reasoning in support of the ultimate order is insufficient. However, this provision is very rarely used.114 Taking into consideration the significance that the reasoning in support of the judgment has in the faith in the legal process in a modern society, it has also been asserted that flagrant breaches of the rules requiring that reasoning be provided in a judgment constitute clear procedural error pursuant to the Chapter 59, section 1, clause 4 of the Code of Judicial Procedure. However, this does not automatically mean that an appeal on the basis of miscarriage of justice must be granted, since it also requires that the error have an impact on the outcome.115 This provision requires the procedural error to be “grave”. Typical for these errors are that they often affects the outcome of the case.116 An example of a grave procedural error can be an error entailing that a party was not permitted to address certain information submitted during the litigation. If the material lacks significance for the assessment of the dispute, there is no grave procedural error of a nature sufficient to vacate the judgment.117 It can be added that matters such as the judge's intent,

108 Fitger, Rättegångsbalken, introduction to Chapter 58. 109 Ekelöf, Rättegång III, p 187. 110 See Fitger, Rättegångsbalken, introduction to 17:11. 111 See Chapter 17, section 7 of the Code of Judicial Procedure. 112 See Chapter 59, section 1, clause 3 of the Code of Judicial Procedure. 113 Welamsson, Rättegång VI, p 244 and Fitger, Rättegångsbalken, 59:1. 114 Welamsson, Rättegång VI, p 244. See also NJA 1985 s. 397 II. 115 Fitger, Rättegångsbalken, RB 59:1. 115 Welamsson, Rättegång VI, p 252. 116 Welamsson, Rättegång VI, p 250 et seq. 117 See, eg, NJA 1993 s. 111.

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carelessness, or consciousness of the error are immaterial to an assessment of the question. Nor does it matter how clear it is that an error has been committed.118

Swedish law has no explicit provision mandating the vacating of a judgment violating public policy or article 6 in the European Convention on Human Rights (ECHR). However, European Court of Justice case law in respect of article 6 is significant when a Swedish court is to assess whether a grave formal error exists.119 To the extent that article 6 ECHR can be said to express “procedural reasonableness” the Swedish judicial system indirectly provides an exception from legal force based on “procedural reasonableness” itself. Swedish law provides no possibility to attack a judgment on the grounds that the upholding of the decision would constitute “abuse of process”.120

Applications of the law manifestly inconsistent with a statuary provision constitute grounds for a new trial. The provision at issue121 only addresses legal issues. Questions of fact are not included, eg those which pertain to the evaluation of evidence in the case.122 This also applies where the erroneous assessment of such a question led to a clearly erroneous result. In the event that one cannot establish whether the court had evaluated the evidence incorrectly or made an erroneous assessment of a legal question, a new trial can be granted.123

Facta supervenientia

An issue which has been decided in a judgment can be readjudicated when facts/circumstances occur after the judgment was made (facta supervenientia). The new fact must be a legal fact (rättsfaktum), which is an important concept in Swedish procedural law. A legal fact is a fact decisive for the outcome of the case in the sense that a remedy is directly linked to it. Evidential facts (bevisfakta) are defined as facts of indirect relevance to the outcome. These facts only have evidentiary value with respect to a legal fact and can therefore never constitute facta supervenentia. Nor can a new item of evidence constitute facta supervenientia.124

The substance of the doctrine of facta supervenentia can be said to be that the new facts are not precluded125 or that the new facts vacate the res judicata effect of the previous judgment.126 There is no legal rule to this effect in Swedish law but the principle, in its primary form, was established by long-standing precedent. The detailed conditions for its application are, however, the subject of certain debate in the legal literature.

In order for a fact to constitute a factum superveniens, the fact must have occurred after the case was concluded and submitted for judgment.127 If a fact existed before that point in time but was not alleged because it was unknown, later knowledge of the fact, pursuant to the prevailing opinion, does not per se constitute a factum superveniens.128 In such a case, however a new trial can be granted depending on the circumstances (see above).

A typical case in which facta supervenientia can be asserted is the situation where a claim is denied because it is not due. When the due date has passed, the claimant, alleging this fact may have the matter readjudicated.

118 Fitger, Rättegångsbalken, 59:1. 119 See, eg, NJA 1992 s. 532. 120 The terms “procedural reasonableness” and “abuse of process” lack direct equivalents in Swedish law but it can probably be assumed that some of the concrete cases which are included in the concept are covered by the provisions regarding extraordinary appeals. 121 Chapter 58, section 1 of the Code of Judicial Procedure, clause 4. 122 Fitger, Rättegångsbalken, 58:1. 123 Fitger, Rättegångsbalken, 58:1. 124 See RH 1999:124. 125 Fitger, Rättegångsbalken, 17:11. 126 Lindell, Processuell preklusion (Norstedts Juridik, Stockholm 1993), p 74 et seq. 127 Ekelöf, Rättegång III, p 200, Lindell, Processuell preklusion, p 74, and Fitger, Rättegångsbalken, 17:11. However, Cf Lindblom in Miljöprocess II, p 620 et seq., which, with explicit and persuasive reasoning, asserts that the entry into force should be the relevant point in time. 128 Ekelöf, Rättegång III, p 201 et seq. with footnotes 119 and 120, Lindblom, Miljöprocess II, p 575, and Fitger, Rättegångsbalken, 17:11. However, cf Lindell, Processuell preklusion, p 77 which asserts the opposite.

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Another clear example of facta supervenientia is the situation in which one of the parties dispose of the subject matter of the dispute after the judgment. A sale can constitute a factum superveniens and render possible new litigation regarding the same subject matter.129 In the same vein, when a guarantor in a judgment has been ordered to pay a certain sum, he may start new proceedings if the creditor has waived his right against the debtor or accepted a reduction of his claim.130

As stated, the new fact must be a legal fact but it can, in principle, be any type of fact. The new fact can consist of a decision by a public authority.131 If legislation which was enacted following a judgment has a retroactive effect, even the new legislation can, under certain circumstances, constitute facta supervenientia.132

Under an appeal court case the parties can make the legal force of the judgment conditional on the fact that certain circumstances do not occur after the judgment. In a settlement agreement which was confirmed by a judgment, the parties included an express condition that they could not invoke the agreement if payment pursuant to the agreement was not made within a certain time. When payment was not made, the court of appeal found no impediment to try the case for payment.133

In order for a factum superveniens to convey the right to retrial, it is also necessary that the new fact, together with the facts which were alleged in the earlier litigation, could have led to a different result in the case.134 It should thus be a question of a relevant fact.135 Even where the question cannot be said to be completely clear, a good argument can be made that the allegation by a party that a certain fact constitutes a factum superveniens should be sufficient to entitle the party to a new litigation.136 Any abuse of this relatively generous arrangement is inhibited by virtue of the fact that the court may immediately, sua sponte, deny the claim in an ex parte judgment, when the new fact appears clearly unfounded.137

If a motion to vacate is granted, according to the main rule a complete retrial of the case must take place. However, in the case of a factum superveniens, it is possible that new litigation will not take place in all respects. The question of whether the facts which were tried in the earlier litigation are covered by the previous judgment's positive legal force must be determined on a case-by-case basis. That question is resolved specifically by how dependent or independent the relevant factum superveniens is vis-à-vis the previously determined facts. In the same vein, the first judgment should be granted positive legal force in respect of the assessment of an issue on which a factum superveniens has no effect. On the other hand, the first judgment can be completely denied legal force in, for example, actions for an injunction and environmental damage cases when a factum superveniens in certain of these cases must be assessed together with the previously tried facts.138

129 Ekelöf, Rättegång III, p 201. 130 RH 2000:60. 131 NJA 1966 s. 325. 132 See Bolding´s and Ekelöf´s expert opinions in NJA 1963 s. 612. See also NJA 1992 s. 598. 133 RH 1995:110. 134 Ekelöf, Rättegång III, p 203. 135 Fitger, Rättegångsbalken, 17:11. 136 Ekelöf, Rättegång III, p 203 and Lindblom, Miljöprocess II, p 598. Cf, however, Fitger, Rättegångsbalken, 17:11, which seems to take the opposite view. 137 Chapter 42, section 5, paragraph 1, clause 2 of the Code of Judicial Procedure. See also Ekelöf, Rättegång III, p 203. 138 Lindblom, Miljöprocess II, p 608 et seq.

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In the previous section, the Questionnaire addressed general aspects of claim preclusive effects of judgments. The following numbered points address particular questions that may arise in relation to the operation of the claim preclusive effects of judgments in particular circumstances which may be subject to specific rules and conditions. It is appreciated that some of the issues you have addressed in the more general answers in the previous section will be involved when you consider these specific situations. Therefore, it is important that you provide an insight in this section into the particularities, if any, of the application of claim preclusion in the circumstances as described.

6. Claimant and Defendant May a Claimant or Defendant in your legal system be prevented by judgment on a particular claim from bringing or defending fresh proceedings against the Defendant or Claimant based on what is considered in your legal system to be the same claim?

Summary:

The claimant may be precluded from bringing fresh proceedings on the same claim or with respect to the same remedy or alternative and financially equivalent remedies. If the claimant attempts to do so, his case will be dismissed based on negative legal force. When a defendant loses a declaratory action, positive legal force prevents him from objecting to the legal relationship that was established by the declaratory judgment. He furthermore may not commence new litigation based on the same claim that would deprive the previous judgment of its effect. This is also true in performance actions. For the defendant, the outcome of the case can be decisive of whether his claims are precluded by the judgment. Specifically with regard to set-off claims, legal force will not bar the later adjudication of a defendant’s counterclaim that was alleged but not litigated. If a new action was brought on the same claim against the same party while the first action is still pending, the court must dismiss the case based on lis pendens; however, the court has the option to stay the second action pending the first judgment.

Full response:

As stated earlier, a judgment has legal force regardless of the result of the case. This means that a judgment regarding the plaintiff’s claim prevents both parties from bringing a new action on the same matter at issue.139 All grounds for both parties' cases are precluded insofar as they pertain to the relevant matter at issue (ie the remedy sought). The future legal relationship between the parties is thus governed by the judgment.140

Regardless of whether the first case brought was a declaratory judgment action or a performance action, it will acquire preclusive effects in accordance with the foregoing regarding negative and positive legal force.

Claimant

The preclusive effect of a judgment on the claimant is that his new case must be dismissed (due to negative legal force).

This applies when the new case is identical (same claims and same grounds) as the case brought previously or when the case has only been modified quantitatively (eg by claiming a higher or lower amount). Moreover, the claimant cannot bring an action in respect of the same (concrete) remedy which has been modified only in respect of the grounds alleged in support thereof. Finally, the claimant cannot bring a second action which pertains to another remedy if it is alternative and financially equivalent to the first remedy claimed.

Defendant

139 It is another matter where a claimant has first brought a declaratory judgement action. He can thereafter bring a performance action. A declaratory judgment action can be said to anticipate a performance action. A declaratory judgment often leads to the defendant’s voluntarily performance of his obligation. (Ekelöf, Rättegång II, p 109, et seq.) Notwithstanding that both declaratory judgment actions and damages actions in a broader sense can be said to concern the same claim, they should not be regarded as the same “matter at issue” under Chapter 17, section 11 of the Code of Judicial Procedure (Ekelöf, Rättegång III, p 185.) 140 Ekelöf, Rättegång III, p 180.

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For the defendant, the preclusive effect of the declaratory judgment entails that in subsequent litigation, he cannot object to the legal relationship which was established by the first judgment. Positive legal force entails that the legal relationship established in the judgment must not be retried in a second litigation, when this legal relationship is decisive for the outcome.

Moreover, both a declaratory judgment action and a performance action entail that the defendant cannot commence litigation against the previous claimant when the new case entails depriving the previous judgment of its effect.

Assume that a judgment compels a defendant to pay a sum of money to the claimant because of an agreement entered into by the parties. The defendant may not later commence new proceedings seeking a judgment establishing that he has no payment liability under the agreement. This is also explained by the fact that the negation of the former claimant's case was adjudicated in the first litigation.141

For the defendant, the outcome of the case can be decisive for the question of whether his claims are precluded by the judgment.

In earlier sections (see section 3) we observed that a claimant can “save” for later litigation a claim in respect of a remedy which is cumulative (ie not alternative) vis-à-vis the first claimed remedy. This also applies if the remedies arise from the same agreement. A purchaser can thus demand compensation for direct losses and consequential losses in two different legal actions. On the other hand, if the seller commences an action and demands payment of the purchase amount, the buyer becomes the defendant in the litigation. He must then allege all defects in the purchased object. Accordingly, in such litigation, the buyer cannot save certain allegations of defects for later litigation. This has practical significance if the buyer has not discovered all defects at the time the seller commences the payment process. As a rule, the buyer forfeits the right to compensation for the defects he discovered afterwards.142 In other words, by virtue of the judgment, all objections to the liability for payment as such are precluded.143

But assume that the seller’s claim is denied. In such a case, the purchaser (ie the previous defendant) may commence an action regarding all defects in the purchased object that have not been adjudicated in the first litigation.

One can ask whether the “asymmetrical” solution of the legal force question described above means that the parties are treated differently in contravention of the requirements of the European Convention on Human Rights. However, it can be asserted that the solutions do not contravene the principle that the parties must be treated equally, since in both cases, the first litigation concerned different claims. When the seller commences litigation, it pertains to payment liability and all of its facets, ie even questions of defects in the purchased object. When the purchaser commences litigation, the scope of the litigation is, however, more limited. It pertains only to compensation for certain defects. Different treatment thus is not explained by the fact that the action was commenced by one or the other of the parties, but rather by the difference in scope of the matter in dispute in the first litigation in both cases.

Another example where the outcome of the case is crucial for the legal force concerns set-off claims. A judgment has “legal force to the extent that it adjudicates a debt claimed as a set-off”.144 Where a defendant makes a set-off objection it is not certain that it will be adjudicated.

141 Ekelöf, Rättegång III, p 184. The aforesaid also applies of course, if the first judgment was a declaratory judgment action establishing the defendant's payment liability arising from the contract. 142 Instead, the rules regarding extraordinary appeals (relief for substantive defects) can become relevant. 143 NJA 1965 s. 94 and NJA 1999 s. 520. 144 Chapter 17, section 1, paragraph 2 of the Code of Judicial Procedure. – The way in which the line should be drawn between objections to payment liability as such (which are precluded regardless of allegation) and set-off claims (which pursuant to Chapter 17, section 11, paragraph 2 are precluded only after allegation) is sometimes difficult. Alleged defects in, eg, an object of purchase or a service should, however, be viewed as objections to payment liability as such. (See NJA 1999 s. 520.)

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In some cases the defendant first alleges that the plaintiff’s claim must be denied due to payment and secondly, that he has a counterclaim that can be set off. If the court finds that the plaintiff’s claim must be denied because of the defendant's first objection, legal force does not bar the counterclaim which was alleged but not adjudicated.145

It has happened that the defendant asserts a number of different set-off claims in an aggregate amount which exceeds the amount sought by the claimant. If the court accepts any of the set-off claims and sets these claims off against the claimant's demands, the remaining set-off claims have not been adjudicated. The defendant can commence new litigation for these claims. On the other hand, if the claimant's action is granted after all set-off claims are rejected, the defendant is not able to have any of the claims adjudicated in new litigation.146

Miscellaneous

If a claimant were to bring the same claim against the same party a second time while the decision on the claim in the first set of proceedings is under appeal, then the court in the second litigation has to dismiss the claim due to lis pendens.147

Suppose that a judgment on a suit to recover lost wages is under appeal, and pending the appeal, the same claimant brings a new claim for recovery of wages against the same defendant relating to a later time period. As initially observed, res judicata cannot arise in this case, since there is no final judgment. Instead, the question is whether the case should be dismissed pursuant to the lis pendens rule. In order to answer this question, one makes a hypothetical legal force assessment: would a final judgment in the first litigation have led to dismissal due to res judicata in the second litigation?

The conclusion is that the second litigation would not have been dismissed on res judicata grounds. As pointed out earlier, it is namely permissible to divide into different actions a demand in respect of amounts falling due at different times. Examples of this would be a landlord's demand for rent for different months or a bank’s demand for different amortisations of a loan. These involve different remedies.148 The judgment regarding a partial sum thus has no legal force in respect of another partial sum (but rather only an evidentiary impact). The reason for this rule is that, based on the magnitude of the claimed amount, the parties should be able to determine how much money they want to spend on the litigation.149

In order to counteract conflicting judgments and promote judicial economy, the situation described above affords the possibility to stay the second litigation in respect of the new claim for, eg, recovery of wages for a later time period.150 This possibility is provided for in Chapter 32, section 5 of the Code of Judicial Procedure.151

7. Other participants To what extent, if at all, do the claim preclusive effects of judgments extend to other participants in the litigation?

145 Ekelöf, Rättegång II, p 173. 146 NJA 1998 s. 189. 147 Chapter 13, section 6 of the Code of Judicial Procedure. – Nordh & Lindblom, Kommentar till RB, häfte II, p 199. 148 Ekelöf, Rättegång III, p 208. – An alternative model for explanation for permitting a new action in respect of eg a different month's rent can be the doctrine of facta supervenentia. However, such reasoning requires that the relevant obligations become due for payment in the period after the first judgment is no longer appealable (cf Ekelöf, Rättegång III, pp 205 and 213.) 149 Ekelöf, Rättegång III, p 210 et seq. – If the defendant wishes to have the issue of, eg the validity of a rental agreement, resolved with finality, he can commence a negative declaratory judgment action thereon. This action will have positive legal force (ie form the basis for a judgment) in any later litigation in respect of payment of additional monthly rents. 150 Ekelöf, Rättegång V, p 196. 151 The relevant provision reads as follows: “If it is of extraordinary importance for the adjudication of a case that an issue sub justice in another court proceeding, or in a proceeding of another kind, be determined first or another impediment to trial of considerable duration is encountered, the court may order a stay of proceedings pending removal of the impediment.”

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Summary:

The legal force of a judgment only binds the parties under the main rule. There can be multiple parties to the litigation, e.g. co-claimants and co-defendants. Legal force is restricted to the party who has raised the claim and the party against whom the claim was raised. Parties are bound by the legal force of a judgment in the usual manner. One who was not originally a party to the action may become so via joinder. It is also possible for an additional person to enter the litigation by assuming an earlier party’s claim. This is termed ‘succession of parties’. The fact that these parties did not join the action until the litigation had begun does not affect the binding nature of legal force upon them. A party, regardless of how or when he became a party, is bound by legal force insofar as it pertains to a claim he has filed or that has been filed against him. A person may also intervene in an action alongside one of the original parties. However, the position of the intervenor is unique in that he does not become a party to the case and cannot therefore make any claims or motions on his behalf. An intervenor will not necessarily be bound by the judgment’s legal force; whether he will be bound depends on his ground for intervention.

Full response:

Under the main rule only the parties are bound by the legal force of the judgment. To the extent that the judgment has legal force in respect of other persons (third parties), this is believed to follow either from the general provisions regarding legal force,152 or (and perhaps in combination with) certain substantive provisions in civil law legislation (see section 9 below).153

Swedish law allows for only two types of participants in the litigation: parties and intervenors.154

The parties to litigation are the claimant and the defendant. There can be several claimants and several defendants in the same litigation.155 For example, this can be a result of either the claim in question being presented by several claimants against one or more defendants or a claimant directing a claim against a certain defendant and another claimant presenting another claim against another defendant, all of which are addressed in the same litigation. A simple and common example of this is two spouses suing two other spouses for payment due to defects in a purchased property. Parties with the same opposing party are each other’s co-party.156

Thus, in cases of consolidation the legal force is restricted to the party who has raised the claim and the party against whom the claim was raised.

With respect to the legal force of the judgment, the presence of several claimants or several defendants is, per se, insignificant. A party who in his capacity as a party to litigation has filed a claim or had a claim filed against him is bound by the legal force of the judgment in the usual manner, even if he has several co-parties.

A person who is not originally a party to litigation can become one during the litigation, under certain circumstances. One example of this situation is set forth in Chapter 14, section 4 of the Code of Judicial Procedure, which provides as follows:

“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 shall be joined in one proceeding.”157

152 Chapter 17, section 11 of the Code of Judicial Procedure. – Ekelöf, Rättegång III, p 230. 153 Cf Lehrberg, Processgemenskap (2nd edn Norstedts Juridik, Stockholm 2000), p 252. 154 This, of course, does not include trial counsel, witnesses, judges etc. in a broad meaning of what can possibly said to be “participants” in the litigation. 155 Chapter 14 , sections 1–2 of the Code of Judicial Procedure. 156 Ekelöf, Rättegång I, p 37. 157 It should be noted that the term “matter at issue” appears in the English translation of both Chapter 17, section 11 of the Code of Judicial Procedure (which pertains to legal force) and Chapter 14, section 4. However, different expressions are used in the Swedish text (“issue” and “that to which the dispute pertains”). In other words, one cannot draw any conclusion about the effect of legal force from Chapter 14, section 5 of the Code of Judicial Procedure.

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There is an additional example in Chapter 14, section 5 of the Code of Judicial Procedure (cf article 6(2) in the Brussels Regulation) which provides as follows:

“If a party, in the event that a judgment is entered against him, wishes to present a claim for rescission or for damages, or a similar claim against a third party, he may institute proceedings against the third party for joint adjudication with the main claim.

If a third person, by reason of the potential outcome of a pending case, wishes to institute proceedings of the kind indicated in the first paragraph against one or both of the parties, he may institute this action for joint adjudication with the main claim.”

In both of the above examples, an additional person has entered the litigation as a party. However, the possibility exists for a person to assume an earlier party's claim (succession of parties). Chapter 13, section 7 of the Code of Judicial Procedure reads as follows:

“If the plaintiff transfers the subject of the dispute, the transferee has the right, without a new summons, to take over the Plaintiff's action in the case in its form at the time of his admission into the proceedings; the liability of the transferor for litigation costs is prescribed in Chapter 18, Section 10.

If a transfer occurs on the defendant's side, the transferee, subject to the plaintiff's consent, may be substituted for the original defendant.

In the event of a transfer, as mentioned above, by either the plaintiff or the defendant, the transferee, on the request of the opposing party, is obliged to join as a party in the litigation if summoned.”

The fact that a person does not become a party until “during the litigation” in the manner set forth above,158 does not mean that the party is treated differently with respect to legal force. A party, regardless of how or when he become a party, is bound by legal force, insofar as it pertains to a claim he has filed or taken over or a claim which has been filed against him.

Intervenors occupy a somewhat unique position in litigation. There are two types of intervenors. A general provision159 regarding intervention reads as follows:

“Anyone not a party to pending proceedings who states that the matter at issue has a bearing on his legal right or obligation, and who shows probable cause for his statement, may appear as an intervenor in the litigation on the side of either the plaintiff or the defendant.”

An intervenor is not a party to the case but, rather, appears alongside of one of the parties (the original claimant/defendant).160 The intervenor can take certain procedural steps and support the original claimant/defendant. However, he cannot make any claims or motions on his own behalf. The exact procedural steps which the intervenor

158 See Chapter 14, sections 4–5 of the Code of Judicial Procedure or Chapter 13, section 7 of the Code of Judicial Procedure. 159 See Chapter 14, section 9 of the Code of Judicial Procedure. Additional provisions regarding intervention are set forth in Chapter 14, sections 10–12 of the Code of Judicial Procedure. There are two different types of intervention which give the intervenors status in the litigation of varying strengths. 160 Fitger, Rättegångsbalken, 14:9.

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may take have been the subject of discussion in the legal literature.161 However, it is clear that he has a right argue and introduce evidence.162

The grounds which can be asserted in support of a right to intervene can be summarised into four groups.163 The first group pertains to cases where a third party can suffer damage from the subsequent execution of the judgment in the case. One example is when the defendant has property in his possession to which a third party makes a claim. The second group relates to those situations where the potential intervenor (a third party) will be bound by the judgment's legal force (for examples, see 9). Next, there is the type of case regarding subrogation claims. One example is when an insurer wishes to intervene in a proceeding by or against the insured. Finally, the last group concerns cases in which the judgment in the relevant case can be deemed to have evidentiary effect in litigation to which a third party (ie the potential intervenor) is a party. This can be the case where several persons have claims for damages against a person due to the same tortious act, and one of them has been granted damages in a judgment.

Intervention does not per se entail that the intervenor is bound by legal force.164 On the other hand, as pointed out above, one of the reasons underlying his right to intervene is precisely that he is bound by the judgment's legal force.

If a party wishes to have a third party intervene in the trial, he can request him to do so (third party notice) under a rule165 where it is provided:

“Any party who considers that a third person is entitled to intervene in the litigation may notify the third person and request that he appear in the proceedings.

A person so notified may in turn notify another person whom he considers to be entitled to enter the proceedings.”

A third party’s decision not to intervene following a third party notice does not have any relevance per se as regards the legal force. The reason that a party wishes a third party to intervene may have to do with the judgment's evidentiary effect. Failure to provide third party notice can, in certain cases, give rise to liability in damages.166

Intervention seldom occurs in practice. Intervention can occur on appeal.167

8. Represented persons Does your legal system provide for group/representative actions (including, for example, US-style class actions)? To what extent, if at all, do the claim preclusive effects of judgments in such actions extend to the other members of the group/persons represented in the action?

Summary:

Sweden has had class action law since 2003 which operates according to an opt-in structure. To maintain a class action, the claims of the claimant and the members of the class must be based on common or similar circumstances. A class action judgment is binding on all class members who submitted an application to the court and therefore is not binding on those parties who did not submit an application even though they may have had claims which could have been included in the class action. Parties wishing to assert similar claims have three alternatives to filing a class action: (1) an individual party may bring a test case; (2) the group members may individually file actions which are later consolidated based on similar claims; and (3) the members may grant one member power of attorney who will then file an action for each class member. However, these alternatives are seldom used and oftentimes, claimants opt

161 See Ekelöf, Rättegång II, p 199 et seq. and Nordh & Lindblom, Kommentar till RB, häfte II, p 244 et seq. 162 Ekelöf, Rättegång II, p 201 and Nordh & Lindblom, Kommentar till RB, häfte II, p 245. 163 See Nordh & Lindblom, Kommentar till RB, häfte II, p 236 et seq., from which the examples below are obtained. 164 Nordh & Lindblom, Kommentar till RB, häfte II, p 236. 165 Chapter 14, section 12 of the Code of Judicial Procedure. 166 Ekelöf, Rättegång II, p 207. 167 Ekelöf, Rättegång II, p 199.

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to transfer their claims to a company or association lacking assets of its own. When this happens, the transferors are not considered parties to the action, although often the transfer agreements entitle them to a share in the proceeds if the action is successful. However, the judgment will have legal force against the transferors as well as the representative transferees.

Full response:

Sweden has had a class action law since 2003.168 To date, no judgment has been issued under the law and the law is being evaluated, inter alia, from a small business perspective.

Under the class action law, a claimant may bring an action in his or her capacity as a representative for others, notwithstanding that they are not parties to the case. The case may be either a declaratory judgment action or a performance action. A class action can pertain to all types of claims. However, it is anticipated that this type of action will primarily be used in the areas of consumer and environmental rights. A threshold requirement for the permissibility of a class action is that the claims of the claimant and the members of the class are based on common or similar circumstances. Additionally, the class must be appropriately defined and the claimant must be appropriate to represent the class numbers in the case.169

On the claimants’ side, the class can be represented by an individual person, an organisation or a governmental authority, eg the Consumer Ombudsman. The Swedish law is based on an opt-in system, as opposed to American legislation, which is based on an opt-out system. Under the Swedish law, a class action judgment acquires legal force against all class members who submitted an application to the court. Accordingly, the judgment does not have legal force vis-à-vis parties who did not submit an application notwithstanding that they have claims which could have been included in the class action. The judgment must name the class members. All uncertainty regarding the parties subject to legal force is thereby dispelled.170 The principles applied in respect of legal force, and the invocation thereof, are also the same as those which apply to “normal” judgments.

Certain questions can arise in respect of recognition and execution of Swedish class action judgments within the framework of the Brussels Regulation; these are briefly addressed below.

The Swedish law does not prevent foreign class members from registering their claims with the Swedish court when the defendant is a Swedish company. In certain cases, the provisions of the Brussels Regulation permit a foreign European company to be sued in a Swedish court (see Articles 5 and 16). The Regulation does not contain any express provision preventing the claimant from having an action adjudicated solely because a class action is involved. The Brussels Regulation is applicable to all civil claims, regardless of the procedural rules which apply to the administration thereof.171 A class action can be commenced in Sweden if a company in another member state sold and delivered defectively mass-produced goods to Swedish buyers.

The conditions for a Swedish class action extend so far that it sometimes may be possible under the Brussels Regulation for a defendant to oppose the recognition of a Swedish class action judgment. As previously noted, under the Swedish law, a class action is not only permissible when the claims of the claimant and class members are based on common circumstances. The class action may also be commenced when they are based on similar circumstances.172 This seems also to mean that the claims of certain class members may deviate so much from the claimant’s claim that they should not be assessed in the same way as the claimant’s claim. Accordingly, one can imagine that the claims of most of the class members must be denied notwithstanding the granting of the claimant’s own claim.

The defendant should, justifiably, be able to require that all similar member claims be described in sufficient detail that he can determine whether they deviate from the claimant’s claim. The defendant may need to advance different

168 Class Action Act (2002:599). 169 Class Action Act (2002:599) section 8. 170 Class Action Act, sections 28 and 29. 171 Pålsson, Brysselkonvention, Luganokonventionen och Bryssel I förordningen, p 52. 172 Class Action Act, section 8, point 1.

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argumentation and evidence in respect of certain member claims than that invoked in response to the claimant’s claim. The problem is, however, that under the law, a member need only file a notice with the court declaring that he wants to be included in the litigation.173 Thus, the application is not conditional on his declaration of the grounds for his claims. Under these circumstances, the defendant might find it difficult to decide whether each member’s claim differs from the claimant’s case in relevant aspects. When a judgment has been rendered in favour of a great number of members, the defendant may argue that the judgment must not be recognised under the Brussels Regulation because the defendant had not been given necessary opportunities to defend its case. The due process requirement will, arguably, be violated if the defendant is not informed in a sufficiently detailed way of each member’s claim. From this perspective, Swedish class action judgments may potentially give rise to complex problems in several European countries. The due process requirement, which means that a party has a right to present and defend its case, is such a fundamental principle of law in most states that setting aside this principle is a violation of public policy under the Brussels Regulation.174 This means that the respondent in relation to some group members may resist recognition of the judgment by relying on the public policy provision in the Brussels Regulation, Article 34 (2). The Krombach case supports this view.175

Parties wishing to assert similar claims have other options apart from a class action. Where another such type of dispute resolution will afford a better or equivalent alternative to a class action, class action litigation may not take place. The class action law is thus premised on the principle that a class action must be superior to other ways of resolvning the dispute to be permitted. The preparatory works to the law provide three alternatives to a class action.176

First, an individual party may bring a test case. The idea is thus that the judgment will provide guidance for adjudication of all similar claims. One example of this is a case involving interpretation of a standard contract term. If the case is determined by the Swedish Supreme Court, the case has precedential impact in respect of other cases involving the same standard contract term. The judgment does not have legal force but, as a rule, courts in Sweden strictly follow the principles which result from precedents of the Swedish Supreme Court.

Secondly, all class members may individually commence action in litigation in which the cases are consolidated. Evidence common to all claims need only be presented once. Consolidation assists in preventing the same types of claim from being adjudicated in a contradictory manner. However, there can be such differences between the similar cases that they will be adjudicated in different ways by the court. Legal force is limited to each separate claim, ie to the judgment as between one plaintiff and one defendant.

Class members have chosen a third solution which entails that one of them is granted power of attorney to commence action for each member of the class. Each claimant is an individual party there as well.

These three alternatives are seldom used. The reason is probably that a claimant is obliged to pay the defendant’s cost of litigation if he loses the case. In order to avoid this liability, it has happened that parties with similar claims have transferred them to a company or an association lacking assets of its own. There is then only one claimant in the litigation and the transferors are not parties. The transfer agreements have contained a provision regarding liability for the transferor to regularly contribute to the claimant’s attorney fees. The agreements have also contained a clause entitling a transferor to a certain percentage of the proceeds in the event of successful litigation. This device has given the transferors the advantage of excluding liability for the defendant’s costs if it should win the case. The transfer agreement have operated to the detriment of the defendant. If he loses the case, he must pay compensation for costs to the claimant. If he wins, he would indeed be awarded compensation but would not receive any compensation since the claimant would be unable to pay. It has been asserted in litigation that a court should not try the claimant’s case because a transfer device entails an abuse of the process: only one party bears real liability for the costs of litigation in contravention of the principle that all parties should be treated equally. However, the Swedish Supreme Court has approved the transfer agreement.177 A judgment granting or dismissing a claim by a 173 Prop [Government Bill] 2001/02:107, p 153. 174 Pålsson Brysselkonvention, Luganokonventionen och Bryssel I förordningen, p 251. 175 Case C-7/98 Krombach v Bamberski. 176 Prop [Government Bill] 2001/02, p 44 et seq. 177 NJA 1994 s. 751.

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party who has acquired claims from a large number of claimants has legal force against the transferors as well. This is so because the transfers took place before the litigation. (See Section II, A 9).

9. Persons connected to the Claimant, Defendant, and other participants To what extent, if at all, do the claim preclusive effects of judgments extend to persons who have not directly participated in the proceedings giving rise to judgment but who are connected in a legally relevant way to the Claimant, Defendant or another participant in the proceedings?

Summary:

Legal force also binds third parties who are connected in a legally relevant way to the claimant or defendant. This can happen through a number of situations. For example, when a party transfers his rights to property to a third party, during litigation, the judgment will have legal force against the third party. Partners in a partnership are jointly and severally liable for the obligations of the partnership and so will be bound by a judgment rendered against the partnership. A judgment in a payment case between a debtor and creditor applies to the advantage, but not to the detriment, of the guarantor/third party. Finally, in company law, a shareholder generally has no liability for the obligations of the company; however, general liability may be imposed on certain shareholders based on whether the corporate veil has been pierced.

Full response:

As stated earlier, the fundamental principle in Swedish law is that the legal force of the judgment is limited to the parties, but there is no stipulation to this effect.178 The main principle is established through precedents.179 The legal literature addresses several situations as exceptions to this principle. In these cases, legal force also binds third parties who thus can be said to be connected in a legally relevant way to the claimant or defendant.

As a main rule, one can say that a third party is bound by legal force to the extent that it is bound by the corresponding civil law disposition over the object of the dispute by one of the parties.180 However, if such disposition does not affect the third party's legal status, the party should not suffer because the litigation had an erroneous outcome.181 One can ask whether it is systematically correct to speak of the judgment's legal force in those cases in which one refers to the judgment's prejudicial effect in a subsequent proceeding and where this effect depends on an agreement between a party and a third party or on a specific civil law provision.182

The following discussion will not address cases in which two persons enter into an agreement which binds a third party under civil law. However, transfer cases will be addressed. A party may transfer, to a third party, the property to which the dispute pertains. In these cases, the time of transfer is conclusive for the question of whether the judgment has legal force against a third party. Where the transfer occurred prior to the litigation (ante rem judicatum), as a rule, the judgment has no legal force against the acquiring party/ third party.183 If, on the other hand, the transfer occurs during (pendente lite) or after (post rem judicatum) the litigation, the judgment has legal force against the third party.184

In the main, the same principle applies upon transfer of rights such as, eg, pledge rights or usufructs.185 There, the time of transfer is also conclusive. This is illustrated by the following example. If A's superior right vis-à-vis B to certain securities is established by a judgment and B thereafter grants C a pledge right in the securities, the judgment will have legal force against C. He must consequently decline the pledge right.186 This does not include the case in

178 Ekelöf, Rättegång III, p 230. 179 See, eg, NJA 1952 s. 459. 180 Ekelöf, Rättegång III, p 234. There are cases in which a third party is bound by legal force notwithstanding that its legal position is not subordinate to one party's civil legal right of disposition, something which is made clear in the following section. See also Ekelöf, Rättegång III, p 238 et seq. 181 Ekelöf, Rättegång III, p 234. 182 Cf Walin, Borgen och tredjemanspant (3d edn Norstedts Juridik, Stockholm 2002), p 348. 183 Fitger, Rättegångsbalken, 17:11. 184 Ekelöf, Rättegång III, p 233. 185 Ekelöf, Rättegång III, p 234 et seq. 186 Ekelöf, Rättegång III, p 234.

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which C’s acquisition is in good faith. If the pledge right had instead been granted prior to the litigation, C would not be bound by the judgment's legal force.

Another example of legal force binding third parties pertains to disputes wherein a partnership is a party to litigation. Pursuant to a civil law rule, all partners in a partnership are jointly and severally liable for the obligations of the business.187 The partnership's transactions therefore have an impact on the partners. They become liable for the partnership's obligations. Where a judgment requires the partnership to pay a sum of money to a creditor, a partner is also bound by the judgment's legal force notwithstanding that he is not a party to the litigation.188 Certainly, the judgment cannot be enforced against the partner, but in any litigation between it and the partnership creditor, the partner is bound by the earlier judgment. The question here is not the judgment's effects as a bar to litigation (negative legal force) but rather the judgment's prejudicial significance (positive legal force). The earlier judgment will form the basis for the court's adjudication in the second litigation. Naturally, the partner is free to seek set-off, for example, or to allege that he left the partnership before the debt arose. However, the partner cannot bring about a readjudication of the question of the partnership's payment liability.189

The question of whether a third party is bound by the judgment's legal force is sometimes dependent on the result of the first litigation. This is the case when a creditor raise a claim against a guarantor. If the creditor and the debtor litigate a dispute regarding the debt, the guarantor, in his capacity as a third party, may rely upon a judgment beneficial to the debtor. If a court has found that the debtor has no payment liability to the creditor, this judgment applies to the benefit of the guarantor. On the other hand, the guarantor is not bound by a judgment detrimental to him, whereby the debtor is found to have payment liability to the creditor (res judicata secundum eventum litis). The judgment in the payment case between the debtor and creditor applies to the advantage, but not to the detriment, of the guarantor/third party.190 Here, the question is one of “unilateral” legal force. The guarantor is entitled to enter in the litigation as a party.191 If he does, he will be legally bound by the judgment regardless of the outcome.192

As stated previously, a third party can, as an exception, also be bound by legal force even if it is not bound by the relevant party's corresponding civil law disposition over the subject matter of the dispute. Sometimes, the legal relationship in the dispute has to have the same effects against several persons. For example, one can consider cases which pertain to the question of whether a resolution of a company’s general meeting should be set aside or modified. A judgment which grants such a claim must also apply to those shareholders who did not bring the case.193 On the other hand, if the claim is denied, other shareholders are free to file suit themselves in respect of the resolution of the general meeting.194 The judgment's legal force binds all shareholders only where the resolution of the general meeting is changed or set aside. This is based on the view that the question must have a uniform regulation vis-à-vis all company stakeholders. The resolutions of the general meeting may thus have different effects vis-à-vis, for example, different shareholders.

In respect of the relationships among group companies, the question arises of whether a parent company can be bound by the legal force of a judgment issued in litigation between a subsidiary and a creditor of the subsidiary. This excludes cases in which the parent company guarantees or otherwise assumes separate liability. The main rule in Swedish company law is that the shareholder has no personal liability for the obligations of the company.195 There is no legislated exception to this main rule.196 However, as a matter of precedent, general liability for the company's obligations has been imposed on certain shareholders. Special civil law conditions are placed for piercing the

187 Chapter 2, section 20 of the Partnerships and Non-Registered Partnership Act (1980:1102). 188 Ekelöf, Rättegång III, p 237 and Fitger, Rättegångsbalken, 17:11. 189 Ekelöf, Rättegång III, p 237 et seq. and Fitger, Rättegångsbalken, 17:11. 190 Ekelöf, Rättegång III, p 237. 191 See Chapter 14, section 5, paragraph 2 of the Code of Judicial Procedure. 192 Lindell, Civilprocessen, p 327. 193 Chapter 7, section 52 of the Companies Act (2005:551) 194 Ekelöf, Rättegång III, p 238. 195 Chapter 1, section 3 of the Companies Act (2005:551). 196 It has been discussed in different contexts whether a statutory law rule should be adopted regarding cases when the corporate veil could be pierced. However, the legislature has recently determined that this is not appropriate, see prop [Government Bill] 2004/2005:85. New Companies Act, p 204 et seq and 511.

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corporate veil.197 It is unclear whether a parent company is bound by the legal force of a judgment between a subsidiary and a company creditor even where the conditions for piercing the corporate veil are satisfied.198

10. Strangers To what extent, if at all, do the claim preclusive effects extend to persons who have not directly participated in the proceedings giving rise to judgment and who are not connected in a legally relevant way to the Claimant, Defendant or another participant in the proceedings or the subject matter of the action?

Summary:

Judgments may have legal force with respect to strangers, for example, in situations involving declarations of patent invalidity whereby such a judgment has universal legal force. This type of legal force is unilateral in the sense that if the claim is denied, other parties are not prevented from seeking such a declaration.

Full response:

There are a number of examples of cases in which a judgment's legal force binds persons who are not in any (legally relevant way) linked to a party or other participant. The clearest example is the case of a declaration of invalidity of a patent.199 The value of a patent depends on whether it is valid against the “entire world”. A judgment declaring a patent invalid also has universal legal force.200 If, on the other hand, the claim is denied, the judgment does not prevent another party from commencing an action for invalidity of the patent on the same grounds.201 The legal force is thus unilateral. An additional example of a case in which legal force, in principle, binds all parties regardless of a connection to a party or other entity is the so-called environmental licensing judgments.202

B. Issue preclusion

1. The existence and nature of issue preclusive effects Are judgments in your legal system capable of having issue preclusive effects?

Please refer to discussion concerning positive legal force above in Part II.A.1, although such force is not strictly considered issue preclusion under Swedish law.

2. Policies underlying issue preclusive effects What are the policy considerations for the issue preclusive effect of judgments in your legal system?

3. Conditions for issue preclusive effects What are the conditions for the issue preclusive effects of a judgment?

4. Invoking issue preclusive effects Please describe how the issue preclusive effects of a judgment are invoked in your legal system.

5. Exceptions to issue preclusive effects Please verify whether the issue preclusive effect of judgments in your legal system is subject to generally accepted exceptions.

In the previous section, the Questionnaire addressed general aspects of issue preclusive effects of judgments. The following numbered points address particular questions that may arise in relation to the operation of the issue preclusive effects of judgments in particular circumstances which may be subject to specific rules and

197 See NJA 1947 s. 647. 198 The question has, to the best of our knowledge, not been addressed in legal literature or case law. 199 Cf section 61 paragraph 2 and section 85 of the Patents Act (1967:837). 200 Ekelöf, Rättegång III, p 238 and Lehrberg, Processgemenskap, p 254 et seq. 201 Ekelöf, Rättegång III, p 238. 202 Lindblom, Miljöprocess II, p 631.

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conditions. It is appreciated that some of the issues you have addressed in the more general answers in the previous section will be involved when you consider these specific situations. Therefore, it is important that you provide an insight in this section into the particularities, if any, of the application of issue preclusion in the circumstances as described.

6. Claimant and Defendant May a Claimant or Defendant in your legal system be prevented by judgment on a particular claim from challenging in the same or subsequent proceedings against the same party any finding (whether adverse or otherwise) on an issue of fact or law which the court may have determined in giving judgment on a particular claim?

7. Other participants To what extent, if at all, do the issue preclusive effects of judgments extend to other participants in the litigation?

8. Represented persons If your legal system provides for group/representative actions (including, for example, US-style class actions), to what extent, if at all, do the issue preclusive effects of judgments in such actions extend to the other members of the group/persons represented in the action?

9. Persons connected to the Claimant, Defendant, and other participants To what extent, if at all, do the issue preclusive effects of judgments extend to persons who have not directly participated in the proceedings giving rise to judgment but who are connected in some way to the Claimant, Defendant or another participant in the proceedings or to the subject matter of the action?

10. Strangers To what extent, if at all, do the issue preclusive effects of judgments extend to persons who have not directly participated in the proceedings giving rise to judgment and who are not connected in a legally relevant way to the Claimant, Defendant or another participant in the proceedings or the subject matter of the action?

C. Wider preclusive effects This section is concerned with the wider preclusive effects of judgments, that is to say any preclusive effect which does not fall into either section A (claim preclusive effects) or section B (issue preclusive effects) above. It is thus concerned with rules which preclude the raising of claims or re-litigation of issues which are not considered by your legal system to have been determined by an earlier judgment, e.g. on the basis of procedural fairness or abuse of process), but which are in some sense related to determined claims or issues.

1. The existence and nature of wider preclusive effects Does your system attribute wider preclusive effects to judgments on the basis of, for example, a doctrine of abuse of process or procedural unfairness?

There is no Swedish law equivalent to “wider preclusion”. However, the meaning of the term “wider preclusion” seems, at least to some extent, to include situations which in Sweden would be deemed to be res judicata. “Abuse of process” as such is addressed, e.g., in that a party pursuing frivolous litigation can be compelled to pay the opposing party's legal costs and in that the court may immediately enter judgment in the case if a claim is clearly unfounded (see Chapter 42, section 5 of the Code of Judicial Procedure).

2. Policies underlying wider preclusive effects What are the policy considerations for the wider preclusive effect of judgments in your legal system?

3. Conditions for wider preclusive effects What are the conditions for the application of wider preclusive effects of a judgment?

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4. Invoking wider preclusive effects How are wider preclusive effects invoked in your legal system?

5. Exceptions to wider preclusive effects Please verify whether the wider preclusive effects of judgments in your legal system are subject to generally accepted exceptions.

In the previous section, the Questionnaire addressed general aspects of wider preclusive effects of judgments. The following numbered points address particular questions that may arise in relation to the operation of the preclusive effects of judgments in particular circumstances which may be subject to specific rules and conditions. It is appreciated that some of the issues you have addressed in the more general answers in the previous section will be involved when you consider these specific situations. Therefore, it is important that you provide an insight in this section into the particularities, if any, of the application of wider preclusion in the circumstances as described.

6. Claimant and Defendant May a Claimant or Defendant in your legal system be prevented by judgment on a particular claim from (1) advancing, in the same proceedings or later proceedings, related claims against the Defendant or Claimant; and/or (2) from seeking the determination in such proceedings of other potentially related issues of fact and/or law?

7. Other participants To what extent, if at all, do the wider preclusive effects of judgments extend to other participants in the litigation?

8. Represented persons If your legal system provide for group/representative actions (including, for example, US-style class actions), to what extent, if at all, do the wider preclusive effects of judgments in such actions extend to the other members of the group/persons represented in the action?

9. Persons connected to the Claimant, Defendant, and other participants To what extent, if at all, do the wider preclusive effects of judgments extend to persons who have not directly participated in the proceedings giving rise to judgment but who are connected in some way to the Claimant, Defendant or another participant in the proceedings or to the subject matter of the action?

10. Strangers To what extent, if at all, do the wider preclusive effects of judgments extend to persons who have not directly participated in the proceedings giving rise to judgment and who are not connected in a legally relevant way to the Claimant, Defendant or another participant in the proceedings or the subject matter of the action?

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III. Preclusive effects of judgments within the Brussels/Lugano Regime

This Part is concerned with the practice of your legal system concerning the recognition of "judgments" (as defined) under the Judgments Regulation, the Brussels Convention (as amended) and the Lugano Convention, to the extent that the State of which your legal system falls part is a Member State or Contracting State bound by the Regulation and/or the either of the Conventions. References to "State of Origin" are to the Member or Contracting State from which the judgment emanates and references to "Recognising State" are to the Member or Contracting State in which recognition of the judgment, for whatever purpose, is sought. Detailed analysis of the provisions of the Brussels Regulation and of the Brussels and Lugano Conventions, as well as the decisions of the European Court of Justice referred to below, is not called for, except insofar as such analysis is necessary or appropriate to explain the practice of your legal system.

A. Recognition

1. Judgments recognised Which judgments, or types of judgments, are recognised (or not recognised) in your legal system under the Brussels/Lugano Regime?

Summary:

Because there is very little Swedish case law regarding the Brussels Regime, the primary focus of Swedish literature has been on ECJ cases. However, there is some case law regarding the interpretation of the term ‘judgment’. For a decision to have binding effect it must have been issued by a court as defined under the Regulation. There have been conflicting court holdings as to whether an average adjustor (dispaschör) should be regarded as a court under the Lugano Convention. The Swedish Supreme Court has not yet decided this issue.

Full response:

Introduction

There is very little case law from Swedish courts in respect of the application of the Brussels Regulation or the Lugano Convention. For this reason, the primary focus of Swedish literature on the subject is on decisions of the European Court of Justice.

To the best of our knowledge, there is no Swedish case law interpreting the term “judgment” in the Brussels Regulation or the Lugano Convention.

In order for a decision to be deemed a judgment, it must have been issued by a court. The definition of a court under the Brussels Regulation must be interpreted autonomously.

In a case from 2000203 the question arose of whether an average adjuster (dispaschör) should be regarded as a court under the Lugano Convention. An average adjuster is a legally trained professional who investigates shipwrecks and ensuing damages and who resolves disputes between, eg, vessel owners, cargo owners, and insurers. Decisions of the average adjuster can be appealed to a district court. However, the decision is not a writ of execution which can result in enforcement.

The predominant view is that an average adjuster is not a court under Swedish domestic law. However, one commentator has stated that the average adjuster is “a type of court, albeit one of a unique nature”.204

In a case in which jurisdiction was at issue, a Swedish insured had commenced action in a Swedish court against a Norwegian insurer. The question arose of whether the claimant was required to go via an average adjuster in a situation which fell under the Lugano Convention.

The question whether the average adjuster was to be deemed a court was never determined by the Swedish Supreme Court, which noted that the Convention took precedence over national law and allowed the insured to commence action directly in the district court (without first submitting the dispute to the average adjuster). However, both the 203 NJA 2000 s. 3. 204 Grönfors, “Svensk rättspraxis – Sjörätt och annan transporträtt 1981–1985”, Svensk Juristtidning 1987 p 41. – Average adjustment has also been deemed subject to a motion for a new trial according to the rules of extraordinary appeals (relief for substantive defects), see NJA 1985 s. 543.

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court of appeal and the district court addressed the question of whether the average adjuster should be deemed a court under the Lugano Convention.

The district court concluded – applying the same interpretation of the term as did the EC Court of Justice205 – that the average adjuster was to be deemed a court.206 On the other hand, the court of appeal found that the average adjuster was not a court. The court of appeal’s reasoning was that the average adjuster’s decisions cannot be enforced. The court of appeal also invoked the Lugano Convention’s “objectives and purposes” in support of its opinion.

Finally, attention may be drawn to the fact that Sweden has utilised the exemption embodied in Article 61 of the Brussels Regulation. Under the conditions stated therein, Sweden accordingly does not recognise judgments which pertain to payment liability for a person who has not appeared in a criminal action.

2. Procedural aspects of recognition What are the procedural aspects of recognition under the Brussels/Lugano Regime in your legal system?

Summary:

Articles 34 and 35 must be strictly interpreted. Generally, they are considered mandatory in that recognition in such cases must be denied. Furthermore, scholars have taken the position that these Articles must be considered sua sponte by the courts, although this does not mean that the court is required to enquire into whether circumstances constitute an impediment to recognition.

Full response:

There has been no development of significant national case law in Sweden regarding procedural aspects in respect of Articles 33–35 of the Brussels Regulation. The predominant view in the legal literature is that the provisions of Articles 34 and 35 are mandatory in that recognition in the cases stated therein must be denied. It has also been stated that these provisions must be given a restrictive interpretation.

Moreover, the position has been taken that the Articles at issue must be considered sua sponte by the court.207 However, Pålsson has stated that there are good reasons for why an exception should be made in the event that the ground for refusing recognition is not supported by any public interest but, rather, exclusively protects the interests of the parties.208 In any event, the requirement of a sua sponte assessment does not mean that the court in state number two would be obliged, on its own initiative, to enquire into whether circumstances existed which would constitute an impediment to recognition. Pålsson has further stated that the decision may be based on both what is set forth in the judgment itself and on the enquiry otherwise initiated by the parties. The wording of the provisions shows, again according to Pålsson, that the burden of proof, apart from the applicant’s obligation to submit copies of the judgment, lies with the party opposing recognition. If the court is uncertain regarding any facts relevant to the assessment, no impediment to recognition should be deemed to exist.209

3. Exceptions to the rule (grounds for non-recognition) How does your legal system approach the grounds for non-recognition under the Brussels/Lugano Regime so far as they concern the preclusive effects of the judgment?

Summary:

Swedish courts are extremely restrictive in their application of public policy reservations. Whether or not the exception will apply is determined on a case-by-case basis with regard to whether the circumstances are manifestly contrary to public policy. Most Swedish public policy exceptions are worded in a way similar to the Brussels Regulation exception.

The Swedish Supreme Court has held that national public policy exceptions and Article 10 of the European Convention are considered separate bases on which to deny recognition. In Sweden, it is generally presumed that a

205 See Case C-54/96 Dorsch Consult Ingenieurgesellschaft mbH v Bundesbaugesellschaft Berlin mbH. 206 The criteria which the district court found to be fulfilled, with reference to EC case law, were that the average adjuster had been appointed in accordance with statutory law, conducted ongoing operations, issued mandatory decisions, presided over an adversarial proceeding, that the body was occupied with the application of law, and that it was independent. 207 Pålsson, Brysselkonvention, Luganokonventionen och Bryssel I förordningen, p 240. 208 Pålsson, Brysselkonvention, Luganokonventionen och Bryssel I förordningen, p 240 with additional references. 209 Pålsson, Brysselkonvention, Luganokonventionen och Bryssel I förordningen, p 240.

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foreign judgment is compatible with the ECHR and it will normally be sufficient for a recognizing/enforcing court to conduct a superficial review of compatibility with the Convention where a judgment comes from a Convention state.

There is a Swedish judgment on record as refusing to enforce a foreign judgment based on irreconcilability and the principle as stated in Hoffmann.

Full response:

Public Policy and the European Convention on Human Rights

Generally speaking, Swedish private international law contain a rather large number of public policy provisions.210 These can, eg, pertain to limitations on the application of foreign law. However, Swedish courts are extremely restrictive in their application of public policy reservations, regardless of whether they pertain to application of foreign law or recognition or enforcement of foreign judgments.211 The courts usually ask whether in the individual case (in casu) a result arises which is manifestly contrary to public policy. One explanation of this restrictiveness has been assumed to be that an application of an public policy exception might be perceived as an act directed against the other country and give rise to protests or reprisals.212

Public policy exceptions in Swedish legislation are almost always worded as they are in the Brussels Regulation.213 Since there is a shortage of court decisions regarding the Brussels Regulation, case law in respect of other public policy provisions regarding recognition and enforcement of judgments might be of interest.

In a well-publicised decision from 1998214 the question arose whether enforcement of a Norwegian judgment should be denied in Sweden due to public policy. The circumstances in the case were, briefly, as follows.

A Norwegian judgment from 1990 required a seal-hunting inspector to pay damages to a number of seal hunters. The damages pertained to compensation for defamatory statements which the Inspector had made, inter alia, in a report on seal hunting in a Norwegian television programme, as well as in a film about Norwegian seal hunting; the film was shown, inter alia, on Swedish television. After the Inspector moved to Sweden, the question arose of whether the judgment could be enforced in Sweden. The premise was that it could take place, based on an act regarding enforcement and recognition of civil law Nordic judgments.215 This act contained an public policy provision, the contents of which conformed to Article 34 (1) of the Brussels Regulation. In other words, in order to refuse enforcement, the judgment must be manifestly contrary to public policy.

The case brought to the fore the question of whether enforcement should be refused due to the relevant public policy provision or due to Article 10 of the European Convention. The Swedish Supreme Court chose to view these two provisions as separate bases on which enforcement might be denied.216

Firstly, the Swedish Supreme Court addressed the question of whether the Norwegian judgment was compatible with freedom of speech provisions of the European Convention. The court found no violation of this right by virtue of the Norwegian judgment. With respect to the public policy question, the Supreme Court held that the right to

210 Bogdan, Svensk internationell privat- och processrätt (6th edn Norstedts Juridik, Stockholm 2004), p 74. 211 Bogdan, “Svensk rättspraxis: internationell privat- och processrätt 2001–2005“, Svensk Juristtidning 2006 p 605, which states that a public policy reservation shall be applied only in “extremely exceptional cases”. See also Pålsson, “Svensk rättspraxis. Internationell privat- och processrätt“, Svensk Juristtidning 2001 p 801. 212 Bogdan, Svensk internationell privat- och processrätt, p 76. 213 In Swedish legal language the term “public policy” is not used. Instead the provisions at issue assert (literally translated) that recognition of a foreign judgment can be refused if it is “clearly incompatible with the basic principles of the Swedish legal system”. 214 NJA 1998 s. 817. 215 The Norwegian judgment had been issued prior to the entry into force of the Lugano Convention. 216 According to Bogdan, “Erkännande och verkställighet av med den europeiska människorättskonventionen oförenlig med utländsk dom“, Svensk Juristtidning 2003 p 28, the incompatibility of the foreign judgment with the European Convention – regardless of whether this is due to the judgment’s substantive content or procedure in conjunction with its inception – certainly can be alleged within the framework of the public policy assessment. But, according to the same commentator, it seems more natural to view it as an independent ground for refusing to recognise and enforce the foreign judgment.

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publish information is a fundamental Swedish constitutional right. The Supreme Court opined that a judgment violates public policy if by holding the defendant liable, the court circumvents the rules regarding the right to publish information. The right to publish information encompasses a right to provide information for publication in, inter alia, newspapers, radio and television. Essentially, under Swedish law, a party who does so cannot be penalised or required to pay damages for dissemination of the information. Legal liability lies instead with a so-called legally-responsible publisher of the newspaper or the programme. In the case at bench, the Supreme Court found no bar to enforcement. It emphasised that consideration of public policy does not mean that a party who participates in a programme which is shown on Swedish television is always protected against enforcement in Sweden of a foreign judgment attaching liability for participation in the programme. If, for example, the Swedish defamatory programme was previously also broadcast in the country where the judgment was issued, the Supreme Court found that the foreign judgment, as a rule, could not violate public policy.217

The Supreme Court decision has been subject to certain criticism.218 Moreover, it has been pointed out that the European Court of Justice later found that a similar judgment was incompatible with Article 10 of the European Convention.219 That case concerned a Norwegian newspaper which had published the critical report written by the Norwegian seal-hunting inspector. A Norwegian court ordered the newspaper and its legally responsible publisher to pay damages to the seal hunters for libel. However, the European Court of Justice found that there was a significant public interest in the newspaper’s ability to contribute to a debate on a matter of significant public interest, not only at the local level but also at the national and international levels. The intervention against the newspaper and its publisher was thus not proportional, but rather constituted an infringement of their rights under Article 10 of the Convention.

Had the aforementioned decision of the European Court of Justice existed prior to the Swedish decision, the enforcment probably would have been refused.220

The Swedish case from 1998 illustrates that conflicts can arise between the European Convention and certain other international treaty based obligations in respect of recognition and enforcement of judgments. In Bogdan’s opinion, the European Convention should be given priority when conflicts arise between this convention and other conventions. He believes that this applies regardless of whether the other state is bound by the European Convention.221

Bodgan further believes that it is not as simple to resolve questions of conflicts between the European Convention and the Brussels Regulation. He deems that it is likely that the EC Court of Justice will be influenced by the Pellegrini judgment222 and that, in the future, there will not be any requirement of a “manifest breach” of a right protected by the convention (Cf the Krombach case223).224 One can assume that Swedish courts will adapt their interpretation of the European Convention by taking European Court of Justice case law into consideration.225

It can generally be presumed that a foreign judgment is compatible with the European Convention. One can often expect that a party wishing to prevent recognition or enforcement will argue to the court that the foreign judgment contravenes the requirements of the European Convention due to its content or its procedural deficiencies.226 In the case from 1998, the Swedish Supreme Court stated that it should normally be sufficient that, as between convention 217 Cf Bogdan, “Svensk yttrandefrihet och erkännande av utländsk förtalsdom”, Juridisk Tidskrift 1998–99 p 648, who says that the enforcement should have been refused to the extent that the damages pertain to compensation for the damage which was caused by the Swedish television broadcast. 218 Pålsson, Svensk Juristtidning 2001, p 801, has noted that it seems as though the Swedish Supreme Court wished, at any cost, to avoid the need to label a judgment from a neighbouring Nordic country as violating public policy. According to Pålsson, the Supreme Court here came very close to what is tolerable. 219 Bladet Tromsø and Stensaas v Norway [GC], no. 21980/93, ECHR 1999-III – (20.5.99). 220 Pålsson, Svensk Juristtidning 2001, p 800. 221 Bogdan, Svensk Juristtidning 2003, p 28. 222Pellegrini v Italy, no. 30882/96 (Sect. 2) (bil.), ECHR 2001-VIII – (20.7.01). 223 Case C-7/98 Krombach v Bemberksi [2000]. 224 Bogdan, Svensk Juristtidning 2003, p 26. 225 Bogdan, Svensk Juristtidning 2003, p 28. 226 Bogdan, Svensk Juristtidning 2003, p 29.

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states, the court in the state of enforcement conduct a rather superficial review of compatibility with the European Convention. However, in the event that any circumstance is brought to light, for example by a party, which calls into question compatibility with the Convention, according to the Supreme Court, the review must be more thorough.

The fact that a foreign judgment pertains to a foreign type of legal institution (ie a legal institution unknown in Sweden) is not per se a reason to deny recognition of the judgment.227

Irreconcilable judgments

There is one recorded case in which a Swedish court refused enforcement because a foreign judgment was deemed incompatible with a Swedish judgment.228 In that case, the issue involved a Swedish divorce judgment which was viewed as incompatible with a French judgment regarding issues of maintenance between separated spouses (séparation de corps). The case concerned enforcement pursuant to the Lugano Convention. Here, the court of appeal referred to the Hoffmann case.229 The court of appeal noted that the French judgment in respect of maintenance required the spouses to still be married, which was incompatible with the Swedish judgment dissolving the marriage. The application for enforcement was thus denied.

4. Effects of recognition What are the effects of "recognition" within the Brussels/Lugano Regime?

Summary:

Although it was held previously that a foreign judgment was accorded the same preclusive effects as a Swedish judgment would receive, in light of the Hoffmann case, a foreign judgment will be afforded the same legal force which it has in its country of origin. An opposing party can bring an action for a negative declaratory judgment in Sweden to defeat recognition of the foreign judgment.

Full response:

The meaning of the term “recognition” does not seem to be completely clear. However, it is clear that a foreign judgment acquires positive and negative legal force in Sweden.230 Negative legal force means that there is a bar to litigation and that a new case on the same matter must be dismissed due to res judicata. Positive legal force means that the foreign judgment must form the basis for a new judgment in Sweden if the question determined there is of significance to the Swedish litigation.231

Previously, the understanding was that a foreign judgment which was recognised in Sweden should be equated with a comparable Swedish judgment.232 However, in light of the Hoffmann case233 the predominant position in the legal literature is now that the foreign judgment is, in principle, afforded the legal force which it has in the country of origin. This applies both in rem and in personam. If, pursuant to the rules in the State of Origin, the foreign judgment thus has, for example, legal force vis-à-vis a third party, it must also have this in the Recognising State. This applies even where a corresponding domestic judgment would not have this effect.234

However, there has been no detailed analysis of this question from a Swedish perspective. It is thus unclear which exceptions from the principle at issue might be relevant for Sweden.

227 Cf Bogdan, Svensk internationell privat- och processrätt, p 100. – In a court of appeal decision (RH 2005:66), it was noted in conjunction with a choice of law question that the award of an Islamic dowry (mahr) did not in principle contravene Swedish public policy and was also not impeded by the fact that the institution lacks an equivalent in Swedish law. 228 See Court of Appeal decision RH 2004:35. 229 Case no. 145/86 Hoffmann v Krieg [1988] ECR 645. 230 Prop [Government Bill] 1997/98:102 regarding Sweden’s accession to the Brussels Convention, p 25. See also Pålsson, Brysselkonvention, Luganokonventionen och Bryssel I förordningen, p 238 et seq and Bogdan, Svensk internationell privat- och processrätt, p 302 et seq. 231 If the foreign judgment (or decision) does not have legal force in the Country of Origin but nevertheless is to be recognised, it does not have legal force in the Country of Recognition, see Pålsson, Brysselkonvention, Luganokonventionen och Bryssel I förordningen, p 239 footnote 2. 232 Pålsson, Brysselkonvention, Luganokonventionen och Bryssel I förordningen, p 239. 233 Case no. 145/86 Hoffmann v Krieg [1988] ECR 645 pp 9–11. 234 Bogdan, Svensk internationell privat- och processrätt, p 302 and Pålsson, Brysselkonvention, Luganokonventionen och Bryssel I förordningen, p 238 et seq.

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The party opposing recognition can bring a negative declaratory judgment action in Sweden.235 This means that he moves the court to declare that the foreign judgment will not be recognised in Sweden.

B. Claim preclusion within the Brussels/Lugano Regime

1. Existence and nature of claim preclusive effects Do judgments recognised in accordance with the Brussels/Lugano Regime have claim preclusive effects in your legal system?

See III.A 4.

2. Policies underlying claim preclusive effects What are the policy considerations for the claim preclusive effect of judgments originating in other EU Member/ Lugano Contracting State in your legal system?

There are no specific policy considerations for Sweden in respect of why foreign judgments should be afforded legal force within the framework of the Brussels Regulation.

3. Law applicable to claim preclusive effects Does your legal system consider that claim preclusive effects of a judgment recognised under the Brussels/Lugano Regime follow from (1) the conclusion that the judgment is recognised under the Brussels Regulation or the Brussels or Lugano Convention (as applicable), without further justification being required, (2) the conclusion that the judgment is recognised for these purposes applied in conjunction with the rules of the State of Origin concerning the claim preclusive effects of the judgment, (3) the conclusion that the judgment is recognised for these purposes applied in conjunction with the rules of your legal system concerning the claim preclusive effects of an equivalent local judgment, (4) the conclusion that the judgment is recognised for these purposes applied in conjunction with the rules of your legal system concerning the claim preclusive effects of an equivalent judgment of a non-Member/Contracting State; or (5) other reasoning?

See III.A 4.

4. Conditions for claim preclusive effects What are the conditions for the claim preclusive effects of a judgment?

Nothing to add.

5. The identity of claims in the Brussels/Lugano Regime How do courts in your legal system determine the identity of claims under the Brussels/Lugano Regime?

There is no Swedish case law to report.

6. The identity of parties in the Brussels/Lugano Regime How do courts in your legal system determine the identity of parties under the Brussels/Lugano Regime?

There is no Swedish case law to report.

7. Invoking claim preclusive effects under the Brussels/Lugano Regime Please describe how the claim preclusive effects of a judgment originating in another EU Member/Lugano Contracting State are invoked in your legal system.

Summary:

235 See the Code of Judicial Procedure, Chapter 13, Section 2. – Pålsson, Brysselkonvention, Luganokonventionen och Bryssel I förordningen, p 253.

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There is no relevant case on in this regard; presumably in most situations, foreign judgments would be treated comparably to domestic judgments. In Sweden, it is likely that once a foreign judgment is recognised, it will also automatically be granted preclusive effects. It is thought to be the court’s obligation to consider such issues sua sponte. However, de facto it is up to the parties to bring a foreign judgment to the attention of the domestic court and this may be done at any time throughout litigation. Where uncertainties arise regarding the foreign judgment’s authenticity or content, the court will likely ask the parties to submit relevant evidence to resolve the matter and if it must, enquire into the question on its own initiative. Courts can require the parties to submit evidence of foreign law and legal force which can be obtained through a variety of channels. In the rare event that evidence of foreign law cannot be located, courts should apply Swedish legal force rules.

Full response:

There is no Swedish case law or literature addressing questions of the parties’ duty to invoke and prove the content and legal meaning of a foreign judgment.

A judgment must be recognised – and consequently (probably) granted claim preclusive effects – automatically.236 There is good reason to say that a Swedish court, at least in theory, has an obligation to consider these questions sua sponte.237 This view accords with that which pertains to domestic judgments. Another reason for sua sponte assessment is that it seems to constitute the most loyal application of an EC legal rule as interpreted by the EC Court of Justice. However, as in cases in which the legal force is relevant as a result of Swedish judgments, a party must de facto invoke the foreign judgment in order to bring it to the attention of the domestic court.

At any time during litigation a party can invoke the legal force effects of a previously-issued Swedish judgment. This is a result of the fact that the effect of a judgment’s legal force must be taken into consideration sua sponte.238 This would probably also apply to foreign judgments. The party may be sanctioned with litigation costs if the issue is not raised in a timely fashion.

Where uncertainties arise regarding the authenticity of the judgment or its actual content (as opposed to its legal meaning), the question would probably be assessed in the same way for both Swedish and foreign judgments; the court would first encourage the parties to submit evidence regarding the question and thereafter – if the uncertainty and disagreement still existed – enquire into the question on its own initiative.

Where the uncertainty pertains to the legal content of the foreign judgment, the Hoffmann judgment, as previously noted, entails that the assessment should be made according to the rules of the State of Origin.

The principle of jura novit curia applies under Swedish law. This means that the parties need not submit evidence regarding Swedish law, since the court is obliged to know the applicable provisions of law. When Swedish courts are to apply foreign law, the court can require a party to submit evidence of foreign law. This is stated in an express rule in the Swedish Code of Judicial Procedure.239 However, this provision primarily addresses substantive provisions of foreign law. The extent to which the court is obliged on its own initiative to enquire into foreign substantive law is not entirely clear, nor is it clear what happens where a party fails to present definitive evidence of the foreign legal provisions.240

Information regarding foreign legal provisions can be obtained by the court via the Foreign Ministry or the Ministry of Justice.241 The parties themselves can also introduce evidence of foreign legal provisions by way of information from the Foreign Ministry,242 opinions of legal experts or legal opinions from law firms. In the very unlikely situation that it is not possible to conduct any research into the effect of legal force in the State of Origin, or where the research would be deficient, the Swedish court should probably apply Swedish legal force rules.243 Even if the research into foreign law is complete, the legal issue in the State of Origin can still be unclear. The legal literature has recommended that Swedish courts then try to answer the question in the same manner as the court in the State of

236 Pålsson in Karnov, 2006/2007 (Thomson Fakta Förlag), under the Brussels Regulation (footnote 149). 237 However, it may be possible that the “sua sponte-question” itself is determined by the rules in the State of Origin. 238 However, there is some uncertainty as to whether the court must take into consideration positive legal force sua sponte. 239 See Code of Judicial Procedure, Chapter 35, Section 2, paragraph 2. 240 Lindell, Civilprocessen, p 414 et seq. 241 Sweden has signed the European Convention on Information on Foreign Law (7th of June 1968). 242 Fitger, Rättegångsbalken, 35:2. 243 Cf Bogdan, Svensk internationell privat- och processrätt, p 52 et seq. The alternative seems to be to make an educated guess regarding the foreign legal provisions. However, this does not appear appropriate. – The case NJA 1987 s. 885 addresses the situation where it is unclear – although likely – that the foreign (substantive) law has a certain meaning. The case indicates that a judgment can be based on the likely provisions of foreign law.

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Origin would have done.244 Clearly, this can be very difficult. Alternatively, a court in these situations can apply Swedish legal force rules.

Another closely-related question arises where the parties have an erroneous understanding regarding which country’s legal force rules are to be applied. In this situation, it may happen that both parties have the same erroneous understanding and present evidence regarding res judicata rules in a certain country. This situation can perhaps be equated with the parties reaching a tacit or express agreement about which country’s legal force rules are to be applied. In a Swedish case regarding setting aside of an arbitration award245 the parties had presented evidence regarding the provisions of legal force rules under the laws of several countries in order to illustrate international case law. The court of appeal found that this could be deemed to be a type of tacit agreement by the parties to apply some type of international principles.

In court proceedings, the parties probably cannot be afforded the right to agree on applicable law in respect of legal force. It is so because, the parties should not be able to increase the cost of the administration of justice by forcing a re-adjudication of a resolved issue which cannot be adjudicated anew pursuant to the law which is applicable. It might be appropriate for the court to inform the parties at an early stage of which country’s law will apply.

8. Exceptions to claim preclusive effects under the Brussels/Lugano Regime

Please verify whether the claim preclusive effect of a judgment originating in another EU Member/Lugano Contracting State is subject to generally accepted exceptions in your legal system.

See III.A.3.

9. Persons affected by claim preclusive effects To which persons or categories of persons do the claim preclusive effects of judgments recognised in accordance with the Brussels/Lugano Regime extend?

See III.A.4.

C. Issue preclusion

1. Existence and nature of issue preclusive effects Do judgments recognised in accordance with the Brussels/Lugano Regime have issue preclusive effects in your legal system?

Summary:

Although this has not specifically been addressed in Swedish case law or literature, based on the Hoffmann case, where a foreign judgment would receive issue preclusive effects, it must also in principle be given such effects upon recognition in Sweden.

Full response:

A judgment which is to be recognised is to be given the effect that it has in the State of Origin, regardless of whether a domestic judgment would have had the corresponding effect. This is the premise of the Hoffman case. Where a judgment in the State of Origin has issue preclusive effects there it must, in this view, also be given such effect in the Recognising State. However, the question has not been addressed in detail in Swedish legal literature. The Hoffmann case says that the judgment “in principle” must have the same effect in a Recognising State. This could mean that various exceptions are conceivable.

2. Policies underlying issue preclusive effects What are the policy considerations for the claim preclusive effect of judgments originating in other EU Member States in your legal system?

See III.B.2.

244 Bogdan, Svensk internationell privat- och processrätt, p 53 et seq. 245 RH 2003:55.

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3. Law applicable to issue preclusive effects Does your legal system consider that issue preclusive effects of a judgment recognised under the Brussels/Lugano Regime follow from (1) the conclusion that the judgment is recognised under the Brussels Regulation or the Brussels or Lugano Convention (as applicable), without further justification being required; (2) the conclusion that the judgment is recognised for these purposes applied in conjunction with the rules of the State of Origin concerning the issue preclusive effects of the judgment; (3) the conclusion that the Recognized judgment is recognised for these purposes applied in conjunction with the rules of your legal system concerning the issue preclusive effects of an equivalent local judgment; (4) the conclusion that the judgment is recognised for these purposes applied in conjunction with the rules of your legal system concerning the issue preclusive effects of an equivalent judgment of a non-Member/Contracting State; or (5) other reasoning?

See III.A.4.

4. Conditions for issue preclusive effects What are the conditions for the issue preclusive effects of a judgment?

Nothing to add.

5. Invoking issue preclusive effects Please describe how the claim preclusive effects of a judgment originating in another EU Member/Lugano Contracting State are invoked in your legal system.

Unlike the negative legal force of a Swedish judgment, it is possible that positive legal force is only taken into consideration where a party invokes the previously-issued judgment. It is therefore not unthinkable that issue preclusion will only be taken into consideration when demanded by a party.

6. Exceptions to issue preclusive effects Please verify whether the issue preclusive effects of judgments in your legal system are subject to generally accepted exceptions.

See III.B.8.

7. Persons affected by issue preclusive effects To which persons or categories of persons do the issue preclusive effects of judgments recognised in accordance with the Brussels/Lugano Regime extend?

See III.A.4.

D. Wider preclusion (abuse of process/claims and issues that could or should have been raised)

1. The existence and nature of wider preclusive effects Do judgments recognised in accordance with the Brussels/Lugano Regime have wider preclusive effects in your legal system?

Summary:

The wider preclusive effects of a foreign judgment under Hoffmann are not addressed in Swedish case law or literature.

Full response:

The question of whether a Swedish court must recognise the wider claim preclusive effects of a foreign judgment in accordance with the Hoffmann case is not addressed in Swedish legal literature or case law.

As previously stated, Swedish law has no rules regarding wider preclusion, but the term seems to partially include cases covered by Swedish legal force rules. From a Swedish perspective, it is probably thought that it is sometimes

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more a terminological question whether the State of Origin chooses to give a judgment preclusive effects, taking into consideration its legal force rules or taking into consideration any rules regarding wider preclusion.

2. Policies underlying wider preclusive effects What are the policy considerations for the wider preclusive effect of judgments in your legal system derived from the Brussels/Lugano Regime?

3. The law applicable to wider preclusive effects Does your legal system consider that wider claim and issue preclusive effects of a judgment recognised under the Brussels/Lugano Regime follow from (1) the conclusion that the Recognized Judgment is recognised under the Brussels Regulation or the Brussels or Lugano Convention (as applicable), without further justification being required; (2) the conclusion that the Recognized Judgment is recognised for these purposes applied in conjunction with the rules of the State of Origin concerning the effects of the Judgment; (3) the conclusion that the Recognized Judgment is recognised for these purposes applied in conjunction with the rules of your legal system concerning the effects of an equivalent local judgment; (4) the conclusion that the Recognized Judgment is recognised for these purposes applied in conjunction with the rules of your legal system concerning the effect of an equivalent judgment of a non-Member/Contracting State; or (5) other reasoning.

4. Conditions for wider preclusive effects What are the conditions for the wider preclusive effects of a judgment?

5. Invoking wider preclusive effects Please describe how the wider preclusive effects of a judgment originating in another EU Member/Lugano Contracting State are invoked in your legal system.

6. Exceptions to wider preclusive effects Please verify whether the wider preclusive effects of judgments recognised under the Brussels/Lugano Regime are subject to generally accepted exceptions.

7. Persons affected by wider preclusive effects To which persons or categories of persons do the wider preclusive effects of judgments recognised in accordance with the Brussels/Lugano Regime extend?

E. Authentic instruments/court approved settlements Do the preclusive effects described in Part III.B. to Part III.D. above (or similar effects) extend to authentic instruments and court (approved) settlements within the meaning of Articles 57 to 58 of the Brussels Regulation (Articles 50 and 51 of the Brussels/Lugano Conventions)?

Authentic instruments and court approved settlements under article 58 of the Brussels Regulation cannot be the subject of recognition and have no legal force.246 However, a judgment confirming a settlement shall be recognised as stated above.247

There does not exist any type of Swedish settlement falling under article 58.248

246 Pålsson, Brysselkonvention, Luganokonventionen och Bryssel I förordningen, p 275. 247 Pålsson, Brysselkonvention, Luganokonventionen och Bryssel I förordningen, p 276. See Code of Civil Procedure, Chapter 17, Section 6. 248 Pålsson, Brysselkonvention, Luganokonventionen och Bryssel I förordningen, p 276.

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IV. Preclusive effects of third state judgments

This Part concerns the preclusive effects of "third state judgments", i.e. judgments from a State which is neither a EU Member State nor a Contracting State to the Lugano Convention. It has been included not only for the purposes of comparison with the domestic and Brussels/Lugano Regimes (as well as the rules in force in the United States of America, which is not a party to the Brussels or Lugano Conventions), but also so that the end product of the Project does not exclude completely this important aspect of the study of the cross-border effects of judgments. It is concerned mainly with the generally applicable rules of your legal system for the recognition of foreign judgments outside the Brussels/Lugano regimes, and not with special regimes applicable, by virtue of international treaty or otherwise, to judgments in specific subject areas or from particular foreign jurisdictions (save insofar as such regimes cast light on the general practice in your system). If third state judgments have preclusive effects in your legal system, both as a matter of general law and by virtue of international convention, please focus on the former rules, giving examples from international conventions only where necessary to highlight significant differences in treaty practice from that pertaining under the general law.

Do the preclusive effects described in Parts II and III above (or similar effects) extend in your legal system to third state judgments?

Summary:

Judgments from third states are in principle recognised only if there is statutory support for the recognition. Such support usually comes in the form of acts which are based on treaties. However, case law provides a few examples of recognition without statutory support; in these situations the foreign judgment is “transformed” into a Swedish judgment which then becomes effective in Sweden.

Full response:

Judgments issued in a third state are recognised and executed only if there is statutory support therefor.249 There are several acts pertaining to recognition of foreign judgments. Each act is often limited to one or several countries and relates to a certain specified area of the law. To a large extent, these acts are based on treaties. Case law provides a few examples of the recognition of foreign judgments in Sweden without statutory support. Bogdan has stated that there are strong reasons in favour of recognition of foreign judgments in such cases which cannot be adjudicated at all in Sweden, notwithstanding that adjudication in Sweden would be of practical significance. For example, he identifies cases in which the parties, by virtue of an exclusive choice of forum clause, have agreed that their dispute is to be adjudicated by a foreign court. In addition, he is believes that a foreign judgment should be recognised when it pertains to real property in a foreign country. Such a judgment may involve a duty for a Swedish buyer of foreign real property to pay the purchase price to the foreign seller. Non-recognition of the foreign judgment would, according to Bogdan, result in an unacceptable legal vacuum, since it would be completely impossible for the claimant in the two stated examples to have the matter adjudicated in Sweden.250

The Swedish Supreme Court has decided a case which involves an exclusive choice of forum agreement.251 Without trying the merits of the case, a Greek judgment formed the basis for a Swedish judgment in respect of the same issue. The judgment required the defendant to pay a sum of money to the claimant. This Greek judgment was thus “transformed” into a Swedish judgment,252 albeit without it formally being a declaration of enforceability (exekvatur).253 Bogdan has pointed out that it is the Swedish judgment, and not the foreign judgment, which is effective in Sweden. He has added that it nevertheless can be asserted that the foreign judgment has legal force in Sweden to the extent that the Swedish court finds itself bound by the foreign judgment.254 According to Bogdan, the Supreme Court’s solution is recommended even in other situations where a new adjudication cannot take place in Sweden but would nevertheless have practical significance.255

249 Bogdan, Svensk internationell privat- och processrätt, p 301 and Pålsson, Brysselkonvention, Luganokonventionen och Bryssel I förordningen, p 232. 250 Bogdan, Svensk internationell privat- och processrätt, p 311. 251 NJA 1973 s. 628. 252 Bogdan, “Erkännande och verkningar i Sverige av i utlandet fastställt faderskap”, Svensk Juristtidning 1977 p 162. 253 Bogdan, Svensk internationell privat- och processrätt, p 312. 254 Bogdan, Svensk internationell privat- och processrätt, p 312. 255 Bogdan, Svensk internationell privat- och processrätt, p 312.

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Tacit choice of venue entails that the defendant, without objection, participates in a foreign litigation. Jurisdiction of the court based on this implicit approval by the defendant has been deemed insufficient to allow recognition of the foreign decision without statutory support.256 But if a party has declared expressly that it accepts the jurisdiction of a foreign court, its judgment will form the basis for issuing a corresponding Swedish judgment.257

256 Se NJA 1986 s. 119. 257 NJA 1986 s. 119. Cf Pålsson, Svensk rättspraxis i internationell processrätt (Norstedts Juridik, Stockholm 1989), p 155 et seq.