Linton on Recognition and Enforcement of Foreign Judgments in Commercial Matters

Marie Linton (Uppsala University) has kindly prepared this presentation of her recent book titled ‘Erkännande och verkställighet av utländska domar i förmögenhetsrätt‘ (Recognition and Enforcement of Foreign Judgments in Commercial Matters), published by Norstedts Juridik 2023.

What is the significance of a foreign judgment in Sweden? Is the judgment effective? Can assets in Sweden be seized based on the foreign judgment? Must the case be re-litigated in Swedish courts?

These are but a few of the questions addressed in the book. The study covers the 2012 Brussels I Regulation, the 2007 Lugano Convention, the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on Recognition and Enforcement of Foreign Judgments in Civil and Commercial matters, as well as Swedish autonomous law.

Historically, a foreign judgment is eligible for recognition or enforcement only if it falls within the scope of Swedish law on recognition and enforcement, which can originate in in EU law or in international conventions to which Sweden or the EU is a party.

In some ways, Swedish law has evolved and expanded towards a more accepting approach to foreign judgments, in large parts because of EU’s activity in this legal area. Accordingly, judgments from EU Member States or from States to an international convention can be recognized and enforced in Sweden, albeit under different circumstances depending on the legal source.

Uncertainty occurs if the foreign judgment is not covered by any Swedish legislation, and autonomous Swedish law needs to be applied. This field of Swedish law is largely uncodified and unexplored.

Judgments not covered by Swedish law have no binding effect in Sweden. Foreign judgments that fall into this category include i.a. judgments originating in Australia, China, the US, India, the whole of Latin America or Africa. At most, the judgment will have evidentiary value in new Swedish proceedings. Hence, the issue will have to be re-litigated in a Swedish court, if the judgment creditor wants a viable judgment in Sweden.

In this Swedish procedure, the court will check the foreign judgment as if the court was an appellate court to the original foreign court. The procedure is conducted in a summary manner, seemingly dependent on the parties’ pleadings.

The Swedish court will check if the foreign proceedings meet the criteria of a fair trial, and if the foreign judgment gives rise to any doubts of a substantive nature. If not, the Swedish court will issue a Swedish decision based on the foreign judgment that can be used for enforcement purposes. Thus, a Swedish court may have to assess whether or not the foreign court of origin applied its own rules correctly!

Moreover, the study addresses the question of whether a new Swedish procedure is compatible with Article 6 of the European Convention on Human Rights. In addition, underlying theories and principles on why foreign judgments can or should be given effect in another State are considered.