SWEDEN Law and Practice Contributed by: Andreas Eriksson, Anders Arthur, David Nykvist and Saga Hanson, TIME DANOWSKY Advokatbyrå
2.7 Final Relief The Code of Judicial Procedure differentiates between two main types of actions: requests for performance and for declaratory relief. A request for performance can be for payment of monetary obligations or for specific performance. The vast majority of cases concern payment claims. A request for declaratory relief is where the claimant asks the court to determine the existence or non- existence of a legal relationship. A common example is where the claimant wants the court to establish that the respondent is liable for damages as a result of a certain event, without fixing the amount of the dam- ages. Actions for declaratory relief are only allowed under certain circumstances, essentially that it is unclear whether the legal relationship exists, that this uncertainty is detrimental to the claimant, and that such an action is otherwise appropriate. 2.8 Damages Damages are assessed on the premise that the injured party should be placed in the same situation as if the event giving rise to the loss had never occurred. The starting point is that it is for the claimant to prove its actual loss and that there is an adequate causal link between the harmful act and the loss. In cases where it would be impossible or unduly difficult or costly to present full evidence on the amount of the loss, the courts can fix the damages at a reasonable amount pursuant to a specific provision of the Code of Judicial Procedure. However, the bar for applying this provi- sion is high. Punitive damages or other types of non-compensato- ry damages or penalties can also be awarded where there is support for that in legislation or in the parties’ contract. 3. Arbitration 3.1 Prevalence Arbitration proceedings are very common, especially for contractual disputes between companies.
Parties often choose arbitration to avoid having to resolve their disputes in public and because arbitra- tion is typically much faster than court proceedings. For international contracts, considerations regard- ing enforceability also often play a part. Commercial contracts of any complexity or concerning higher values therefore often include arbitration clauses. For instance, practically all M&A contracts provide for resolution of disputes through arbitration. Arbi- tration clauses are also included in many standard agreements, such as the prevailing Swedish standard agreements in the field of construction. 3.2 Restrictions on Use of Arbitration Any dispute that the parties can settle is arbitrable. This means that most commercial matters can be referred to arbitration. Examples of non-arbitrable matters include questions of criminal liability and con- cerning family status, such as marriage and adoption, as well as certain matters relating to insolvency and competition law. In some situations, arbitration clauses may also be considered unreasonable and may therefore be held invalid. For instance, this could be the case in employ- ment relationships. In a similar vein, the Arbitration Act provides that before-the-event arbitration agreements for consumer disputes are invalid. Furthermore, the Court of Justice of the European Union has held in a series of rulings starting with the Achmea case (C‑284/16), that arbitration agree- ments concerning intra-EU investor-state disputes are incompatible with EU law. 3.3 Advantages of Arbitration Arbitration is generally significantly faster than court proceedings, since the dispute is decided in one instance without the possibility of appeal. This can sometimes also result in cost savings for the parties that outweigh the additional costs for the arbitrators and any arbitration institute that is involved. Parties also often value the possibility to appoint arbitrators with specific expertise in the field at issue, something which cannot always be guaranteed in court proceed- ings. Another often-cited benefit of arbitration is the private nature of the proceedings, as most parties prefer not to resolve their disputes in public. Final-
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