SWEDEN Law and Practice Contributed by: Andreas Eriksson, Anders Arthur, David Nykvist and Saga Hanson, TIME DANOWSKY Advokatbyrå
dence of class action or mass claim type of disputes having been decided in arbitration. One further limiting factor in this connection is that arbitration agreements covering consumer disputes which have been entered into before the dispute at issue arose, are generally invalid and cannot be enforced. 7.5 Trends Class-action lawsuits are very uncommon in Sweden, with only a couple of cases brought each year. Mass claims are also uncommon. However, there have been a few high-profile cases in recent years. Because of the small sample size, it is difficult to iden- tify any particular trends. However, it is likely that the number of class actions will increase following the enactment of the Act on Class Actions for the Pro- tection of Consumers’ Collective Interests. One area where an increase can be predicted is claims for dam- ages for violations of data protection legislation. Swedish law takes a relatively restrictive approach to document production, and there is no general discov- ery-style disclosure. The Code of Judicial Procedure provides that a party, or a third party, who is in possession of a document that may serve as evidence can be ordered to present it. Also, categories of documents may be requested. Exceptions apply for personal notes, unless there are special reasons for disclosure, as well as for docu- ments covered by privilege or confidentiality. 8. Evidence 8.1 Disclosure In theory, the rules allow for relatively wide document production. However, in practice, their reach is lim- ited by requirements that the document or category of documents at issue must be relevant and sufficiently clearly identified. The courts also tend to interpret the exceptions broadly. Arbitral tribunals also have the power to order docu- ment production, but such orders are not considered enforceable. The reach of any disclosure obligation in arbitration is decided by the parties and the arbitral
tribunal. In international arbitration proceedings, the IBA Rules on the Taking of Evidence in International Arbitration are often applied. 8.2 Privilege Privilege is mainly regulated in Chapter 36 of the Code of Judicial Procedure. The rules are technical and complicated but, in short, provide for a prohibition on questioning of certain categories of professionals, such as attorneys, certain mediators, medical doc- tors and priests, about confidential information that they have received in the course of their professional practice. Exceptions may apply, for instance, relating to information about certain serious crimes. Documents may be withheld from production, if their content would be protected by a prohibition on ques- tioning as set out above. Privilege may be lifted if the party in favour of whom privilege applies consents to disclosure. 8.3 Confidentiality Very little information is considered confidential such that it would be possible to withhold it as evidence, unless it is also covered by privilege. The confiden- tiality exception that is of greatest relevance in com- mercial disputes relates to trade secrets, which are nevertheless afforded limited protection in evidentiary proceedings. 8.4 Witness Evidence In Sweden, there is a general duty to testify in court proceedings. This means that anyone who is sum- moned as a witness is obliged to appear before the court and answer questions truthfully under oath. Cer- tain exceptions apply, for instance, for family mem- bers of the parties. There is no obligation to answer questions outside of the formal testimony in court. Thus, a party has no right to depose witnesses before the hearing, unless the witnesses volunteer to answer questions. The unpredictability that this could be perceived to result in is mitigated by a requirement that the parties must state what circumstances the witnesses will testify on before the hearing. Written witness statements are
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