Since 1949

When foreign law is to be applied by a Swedish court but the content of the foreign law remains unknown

When foreign law is to be applied by a Swedish court but the content of the foreign law remains unknown

Johannes Marszalek (Advocate)

There are cases where Swedish courts have to apply foreign law in disputes with an international connection. There are also cases where for various reasons the content of foreign law, in so far as relevant to the dispute, remains wholly or partly unknown to the court.

It should be noted in this connection that the parties are responsible in principle for providing an investigation into the content of foreign law. In other words it is not normally a matter for the court to obtain information about the legal rules of another legal system. Essentially the issue of the content of foreign law should be a question of evidence. However it is not a question of evidence in the normal sense. The court may demand that a party presents evidence about the meaning of the foreign legal rules. However, of course, that does not mean that the party will actually do so or that any investigation presented is adequate. The foreign rules may also be unclear or incomplete in part.

The question thereby arises of what the court should do when the Swedish international law of procedure indicates that the law of another country is to be applied but there is no adequate investigation of what that country’s law means in those respects relevant to the dispute.

The judgment of the Supreme Court of Sweden (HD) of 26 April 2016 in Case no. T 4816-12 contains a fair clarification of the issue. HD states the following in Clause 19 of its judgment:

“By the very nature of the matter, it is not always possible to maintain the same standard for the application of foreign law as for Swedish law. This task involves legal rules in another legal system. The foreign rules may be unclear, and there may be no court rulings to guide their interpretation. In some cases, it may be that there are no explicit rules for the issue to be ruled on. In situations of this kind, the court may, when the content of foreign law remains unknown, in practice [my italics] sometimes need to proceed using as a point of departure an assumption [my italics] that the foreign law corresponds to the Swedish law, in the absence of any special circumstances suggesting otherwise [my italics]”.

This statement is in part consistent with the legal case NJA[1] 1988 p. 440, where the HD first concluded that Italian law was applicable but subsequently added the following:

“There is nothing in the case that leads to the assumption that the Italian law would differ from the Swedish law in any respect that is of significance”.

It would appear to follow from the rulings in Case no. T 4816-12 and NJA[2] 1988 p. 440 that a Swedish court, when the dispute is to be determined in accordance with foreign law but the content of foreign law remains unknown, may often assume that foreign law is consistent with Swedish law. In other words, there is probably some kind of presumption of conformity between Swedish and foreign law.

Certainly this solution is often appealing to the court, which then has to take a position on a legal matter with which the court is familiar.

The HD’s statement above in Case no. T 4816-12 provides some guidance and a point of departure on which the lower courts have to adopt a position. However, the statement also raises several issues that are not answered by the judgment. The HD writes “in practice”. But what legal authority actually exists to empower a court to act in the manner proposed by the HD? What is meant by the expression “in the absence of any special circumstances suggesting otherwise” and what should the court do in cases where this reservation is satisfied? Are there ‘situations’ when the court cannot assume the consistency of foreign and Swedish law despite the content of the foreign law remaining unknown? In that case, when and how should the court act?

Despite the ruling of the HD in Case no. T 4816-12, and the point of departure that it sets out, it is thus by no means certain how a Swedish court should act in each individual case where the law of another country is to be applied but the content of the foreign law remains unknown.

The work of the lawyers at Zacharias Advokatbyrå [Zacharias Advocate Law Offices] involves international commercial disputes where this kind of issue arises.

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[1] Translator's note: Nytt Juridiskt Arkiv – a renowned Swedish law report series.

[2] Ibid.

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