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Private international law in Sweden is codified only in part, and consists of a combination of statute and case law. The statute law is for the most part aimed at giving effect to international conventions to which Sweden is a party. The main legislation is as follows:
Marriage and children
Contracts and sale
Compensation for injury
Sweden is a party to the following multilateral international conventions that lay down rules on the applicable law. Sweden takes a dualist approach to international treaties, and these multilateral conventions have also been given effect by domestic legislation: see above.
The League of Nations
The Hague Conference on Private International Law
There is no rule in Swedish law requiring a court to apply foreign law on its own initiative. The question has been addressed mainly in case law, and there seems to be a division between optional proceedings (dispositiva mål), that is to say proceedings on matters that the parties would be free to settle by agreement, and mandatory proceedings (indispositiva mål), that is to say proceedings on matters that can be determined only by a court. In proceedings of the optional type, it would appear that one of the parties must invoke the foreign law before it can be applied. There have been many cases with a clear foreign element in which Swedish law has been applied without question because no party invoked the foreign law. In proceedings of the mandatory type, on the other hand, involving the establishment of paternity, for example, there have been cases where the courts have applied foreign law of their own motion.
The general approach taken to renvoi in Swedish private international law is negative. There is an exception, however, in Section 79(2) of the Bills of Exchange Act and Section 58(2) of the Cheques Act, regarding the capacity of foreign nationals to enter into transactions involving bills of exchange or cheques. The reason is that these provisions are based on international conventions. There are other exceptions in Section 9(2) of the Act on the Effects of Insolvencies occurring in another Nordic Country (1981:7) and Sections 5-7 of the Act on the Law Applicable to Certain Insurance Contracts (1993:645). Lastly, on the formal validity of a marriage, renvoi is recognised in Section 1(7) of the Act on Certain International Legal Relationships in respect of Marriage and Guardianship (1904:26 s. 1).
Swedish private international law has no general rule for the effect of a change in the connecting factor: the matter is regulated specifically in each separate statute. For example, Section 4(1) of the Act on Certain International Questions relating to Married People’s Property (1990:272) states that “If the applicable law has not been determined by agreement, the applicable law shall be the law of the state in which the spouses took up habitual residence (hemvist) when they married”, and Section 4(2) of the same Act says that “If both spouses subsequently took up habitual residence in another state and lived there for at least two years, the law of that state shall apply”.
It is regarded as a general principle of Swedish private international law that a provision of foreign law should not be applied if its application would be manifestly incompatible with the fundamentals of the legal system in this country. Provisions to that effect can be found in much private international law legislation. But it is not to be inferred that a public policy restriction requires a basis in legislation. There have been very few judgments finding that foreign law could not be applied on grounds of public policy.
Determining which rules of Swedish law are internationally mandatory is usually a matter for the judiciary.
If the court is not acquainted with the content of the foreign law which it considers should be applied, there are two courses open to it. Either it conducts an investigation itself, or it asks a party to produce the necessary information. Which alternative is chosen is a question of expediency. If the court decides to investigate the matter itself, it can secure the assistance of the Ministry of Justice. In general, the court will play a more active role in mandatory proceedings than in optional proceedings (see above); in optional proceedings it can leave the investigation largely to the parties.
Sweden is a party to the 1980 Rome Convention on the Law Applicable to Contractual Obligations. Other rules of law apply in some areas.
The sale of goods is governed by the Act on the Law Applicable to the Sale of Goods (1964:528), which incorporates into domestic law the 1955 Hague Convention on the Law Applicable to International Sale of Goods. The Act is based on the rules in the Rome Convention. It does not, however, cover consumer contracts. Section 3 allows the buyer and the seller to determine the applicable law by agreement. Section 4 states that if the parties have not chosen the applicable law the law that applies is that of the seller’s country of habitual residence. There is an exception to this rule if the seller accepted the order in the buyer’s country of habitual residence, and for purchases on an exchange or at an auction.
There is another exception from the rules of the Rome Convention for some consumer contracts. In Section 13 of the Act on Contractual Conditions in Consumer Relationships (1994:1512), Section 18 of the Act on the Protection of Consumers with regard to Time-share Property (1997:218) and Section 5(2) of the Act on Distance and Door-to-door Selling (2005:59) there are special rules aimed at protecting consumers from choice-of-law clauses. They provide that under certain circumstances the law of an EEA country is to be applied if it provides better protection for the consumer.
There are specific rules for bills of exchange and cheques in Sections 79-87 of the Bills of Exchange Act (1932:130) and Sections 58-65 of the Cheques Act (1932:131). These are based on the 1930 Geneva Convention for the Settlement of Certain Conflicts of Laws in connection with Bills of Exchange and Promissory Notes and the 1931 Geneva Convention on the Settlement of Certain Conflicts of Laws in connection with Cheques.
Some life assurance and other insurance contracts are governed by the Act on the Law Applicable to Certain Insurance Contracts (1993:645).
The question of the law applicable to non-contractual obligations is not regulated generally in legislation. In the judgment in case ref. NJA 1969 s. 163 it was held that in non-contractual matters the liability to compensate for damage was to be determined in accordance with the law of the country in which the act causing the damage was performed (the lex loci delicti). In that case no account was taken of the fact that the person causing the damage and the person suffering the damage had the same habitual residence. There are no judgments that might answer the question which country’s law is to apply where the act causing the injury was performed in a country other than that in which the direct damage occurs.
In Swedish private international law the decisive connecting factor for establishing personal status has traditionally been nationality. But there now are so many cases in which nationality has had to give way to habitual residence as the main connecting factor that it is doubtful whether one can still speak of a single main connecting factor for personal status. In Swedish private international law, “personal status” is understood to comprise essentially questions of legal capacity and name.
Under Chapter 1, Section 1, of the Act on Certain International Legal Relationships in respect of Marriage and Guardianship (1904:26 s. 1), capacity to marry before a Swedish authority is in principle to be established in accordance with Swedish law if either party is a Swedish national or is habitually resident in Sweden. Similar rules apply in the Nordic framework under Section 1 of the Order on Certain International Legal Relationships in respect of Marriage, Adoption and Guardianship (1931:429).
There are special rules on guardianship and trusteeship in Chapters 4 and 5 of the Act on Certain International Legal Relationships in respect of Marriage and Guardianship (1904:26 s. 1) and in Sections 14-21a of the Order on Certain International Legal Relationships in respect of Marriage, Adoption and Guardianship (1931:429).
Under Chapter 1, Section 3, of the Act on International Legal Relationships in respect of the Estates of Deceased Persons (1937:81), capacity to make or revoke a will is governed by the law of the country of which the testator was a national.
As regards the question of the law applicable to capacity to contract, a partial answer is provided by Article 11 of the Rome Convention. The capacity to enter into transactions involving bills of exchange or cheques is governed by special rules in Section 79 of the Bills of Exchange Act and Section 58 of the Cheques Act.
There is a special rule on the capacity to sue and be sued in Chapter 11, Section 3, of the Code of Judicial Procedure, which states that a foreigner who in his or her own country is unable to conduct legal proceedings may nevertheless do so in Sweden if he or she has capacity in accordance with Swedish law.
Swedish private international law regards questions of name as belonging to the law of personal status. This means, for example, that the taking by one spouse of the other spouse’s name is not classified as a matter of the legal effects of marriage in the personal sphere. According to Section 50 of the Personal Names Act (1982:670), the Act does not apply to Swedish nationals who are habitually resident in Denmark, Norway or Finland; it may be concluded a contrario that it does apply to Swedish nationals elsewhere. Section 51 states that the Act also applies to foreign nationals who are habitually resident in Sweden.
Swedish substantive law does not distinguish between legitimate and illegitimate children, and Swedish private international law has not got specific choice-of-law rules for determining whether a child is to be regarded as born inside or outside wedlock, or whether a child can be legitimated subsequently.
As regards the law applicable to the establishment of paternity, there are different rules for the presumption of paternity and for the establishment of paternity by a court of law. The presumption of paternity is governed by Section 2 of the Act on International Paternity Questions (1985:367). This provides that a man who is or has been married to the mother of a child is deemed to be the child’s father if that is the consequence of the law of the state in which the child became habitually resident at birth, or, where that law does not consider anyone to be the father, if it is the consequence of the law of a state of which the child became a national at birth. If the child’s habitual residence at birth was in Sweden, however, the question will always be decided in accordance with Swedish law. If paternity has to be established in court, the court will apply the law of the country in which the child was habitually resident at the time of the judgment at first instance.
Under Section 2(1) of the Act on International Legal Relationships in respect of Adoption (1971:796), a Swedish court considering an application for adoption is to apply Swedish law. Section 2(2) directs, however, that if the application relates to a child under the age of 18, the court must consider whether the applicant or the child is connected with a foreign state by nationality, habitual residence or otherwise, and whether this can be expected to cause difficulty for the child if the adoption is not recognised in that country.
As regards the legal effects of adoption, when a foreign adoption order is valid in Sweden the adopted child is regarded as the adoptive parent’s child in a Swedish marriage for purposes of custody, guardianship and maintenance. In the case of succession, however, the law requires equal treatment of adopted children and the adoptive parent’s own children only if the adoption took place in Sweden. If the adoption took place abroad, the adopted child’s entitlement to inherit will be considered in accordance with the law that generally governs entitlement to inherit, that is to say the law of the country of nationality.
As regards capacity to marry, see point 3.3. above. A marriage is considered to be valid as to form if it is valid in the country in which it was celebrated (Chapter 1, Section 7, of the Act on Certain International Legal Relationships in respect of Marriage and Guardianship (1904:26 s. 1)).
The legal effects of marriage can be divided into two main categories, those in the personal sphere and those relating to the spouses’ property. The main effect of the marriage in personal terms is that the spouses have a mutual obligation to maintain one another. In Swedish private international law, questions of the spouses’ entitlement to inherit, their acquisition of the other spouse’s name or their duty to maintain the other spouse’s children are not regarded as legal effects of the marriage, and the law applicable is determined by the choice‑of‑law rules that govern inheritance, personal names etc.
The question of the law applicable to the maintenance of a spouse is not regulated by legislation. The law of the country of habitual residence of the spouse entitled to maintenance has been applied in cases where the spouses also had their joint habitual residence in that country during the marriage. The Supreme Court has not yet decided the question which law is applicable where the person entitled to maintenance has moved to another country, but there are decisions of the courts of appeal that show a willingness to apply the law of the country to which that person has moved. An agreement on the applicable law has been respected in cases where the agreement was concluded after the dispute arose.
In questions of divorce, Chapter 3, Section 4(1), of the Act on Certain International Legal Relationships in respect of Marriage and Guardianship (1904:26 s. 1) directs that the Swedish courts are to apply Swedish law. Section 4(2) makes an exception if both spouses are foreign nationals and neither has been habitually resident in Sweden for at least one year.
Swedish substantive law does not contemplate the legal institutions of legal separation or annulment of marriage, and there are no generally applicable choice‑of‑law rules that might apply to such cases. As far as Nordic countries are concerned, Section 9 of the Order on Certain International Legal Relationships in respect of Marriage, Adoption and Guardianship (1931:429) states that in cases of legal separation the court is to apply its own law.
Under Chapter 3, Section 1, of the Registered Partnerships Act (1994:1117), partnership between two persons of the same sex has the same legal effects as marriage. Chapter 3, Section 4, however, makes an exception in the case of the application of the Order already mentioned here, the Order on Certain International Legal Relationships in respect of Marriage, Adoption and Guardianship (1931:429).
The law applicable to married people’s property is regulated in the Act on Certain International Questions relating to Married People’s Property (1990:272). Section 3 of the Act permits married people or couples contemplating marriage to conclude a written agreement providing that their matrimonial property regime is to be governed by the law of a country of which one of them is a habitual resident or a national at the time the agreement is concluded.
If the spouses have not entered into a valid choice-of law agreement, Section 4 of the Act states that the applicable law is the law of the country in which they take up habitual residence after marriage. If both spouses subsequently take up habitual residence in another country, and live there for at least two years, the law of that country will be applied instead. But if both spouses have already been habitually resident in that state during the marriage, or if both of them are nationals of that state, the law of that state will be applied from the moment they take up habitual residence there.
Section 5 of the Act states that a choice-of-law agreement is valid if it is consistent with the law applicable to the spouses’ property when the transaction takes place. If the choice-of-law agreement is concluded before the wedding, it is valid if it is consistent with the law that becomes applicable when the spouses marry. A choice-of-law agreement is valid as to form if it satisfies the formal requirements of the law in the state in which it is concluded or in which the spouses are habitually resident.
For Nordic cases there are special rules laid down in the Order on Certain International Legal Relationships in respect of Marriage, Adoption and Guardianship (1931:429).
Chapter 1, Section 1(1), of the Act on International Legal Relationships in respect of the Estates of Deceased Persons (1937:81) states that entitlement to inherit is to be assessed only under the law of the country of which the deceased was a national at the time of death. That is the law that governs such things as who is entitled to inherit, what their share of the estate may be, and whether there are any statutory portions. A right of an heir to maintenance over and above his or her share of the inheritance is likewise subject to the law governing the succession.
Under Chapter 1, Section 8, of the Act on International Legal Relationships in respect of the Estates of Deceased Persons (1937:81) the question whether a gift is to be regarded as an advance out of the inheritance is to be decided in accordance with the law of the country of which the deceased was a national at the time of the gift. In the same way, Chapter 7 of the Act provides that the question of the binding character of agreements with the deceased regarding future succession and of gifts made in contemplation of death is to be decided in accordance with the law of the country of which the deceased was a national at the time the transaction took place.
Chapter 1, Section 9, of the Act directs that the question how far a person has capacity to inherit is to be decided in accordance with the law of the country of which the person is a national.
Under Chapter 1, Section 3, of the Act, capacity to make or revoke a will is to be determined by the law of the country of which the testator was a national at the time the transaction took place.
Chapter 1, Section 4, states that wills are regarded as valid as to form if they satisfy the formal requirements of the law of the place where the will was made or of the place where the testator was a national when making the will or at death. In so far as the will concerns immovable property it will also be regarded as valid as to form if it satisfies the formal requirements of the law of the place where the immovable property is located. The same applies to the revocation of wills. This provision implements the 1961 Hague Convention on the Conflicts of Laws relating to the Form of Testamentary Dispositions.
Chapter 1, Section 5, of the Act states that the validity of the substance of a will is to be determined in accordance with the law of the country of which the testator was a national at the time of death. Under Chapter 1, Section 6 of the Act, the same applies to the question whether the will is invalid on grounds of insanity, fraud, mistake, coercion or other undue influence.
There are special rules governing Nordic cases in the Act on the Estates of Deceased Danish, Finnish, Icelandic or Norwegian Nationals who had their Habitual Residence in Sweden (1935:44).
In the law of property there are written choice-of-law rules only for certain cases concerning ships and aircraft, financial instruments and unlawfully removed cultural objects, and for certain situations regulated in the Nordic Bankruptcy Convention and the EC Insolvency Regulation.
The effects in property law of a purchase or mortgage of movable or immovable property, for example, are to be determined in accordance with the law of the country in which the property is situated at the time of the purchase or mortgage. That law will determine the nature of any property rights, how any property right begins and ends, what formal requirements there may be and what rights the property right confers against third parties.
As regards foreign security rights, it is established in the case law that if at the time a security right arose the seller knew that the property was to be taken to Sweden, and the security right is not valid in Sweden, the seller ought instead to have obtained a security that would satisfy the requirements of Swedish law. In addition, a foreign security right is not to be given legal effect once time has passed since the property was brought to Sweden. It is considered that the foreign creditor has had time either to obtain fresh security or to recover the debt.
In a Swedish insolvency Swedish law is applicable to the proceedings themselves and to other questions of insolvency such as the conditions for instituting proceedings.
There are special rules for matters involving other EU Member States in Regulation No 1346/2000 on insolvency proceedings.Top
Last update: 20-03-2007