Abstract
Swedish legislation on international co-operation in litigation, although occasioned principally by Sweden’s adherence to the Hague Convention on Civil Procedure of 1905 (replaced by the Convention of 1954),1 is neither restricted to civil matters nor limited in application to states adhering to the 1905 or 1954 Convention. In addition to legislation of general application, special regulations have been issued pursuant to bilateral agreements with other nations.2 0f these, the regulations on co-operation with Denmark and Norway, motivated by the extensive contacts between governmental authorities and residents of the three Scandinavian states, are broadest in scope.3
The authors acknowledge with special gratitude the generous assistance and thoughtful criticisms of the preliminary draft of this report furnished by the Legal Department of the Royal Swedish Ministry for Foreign Affairs. The authors are further most indebted to Gunnar Silfwersvärd, Jur. kand. 1959, University of Uppsala, for his valuable assistance.
Jur.kand. 1932, University of Stockholm ; Advokat; Member of the Swedish Bar Association, 1940.
Jur. kand, 1934, University of Stockholm ; Civilrådman, City Court of Lund.
Jur. kand. 1953, Universityof Lund; Advokat; Member of th e Swedish Bar Association, 1963.
B. A. 1954, Cornell University ; LL .B . 1959, Columbia University; Assistant Professor of Law, Rutger s University.
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References
Sweden adheres to both the July 17, 1905, and the March 1, 1954, Hague Conventions. The Convention of 1905 remains effective between Sweden and countries that have not adhered to the Convention of 1954. See Cabinet Proclamation, May 19, 1961 (adherents to the 1954 Convention are: Belgium, Denmark, Finland, France (including designated territories and possessions), Italy, Luxembourg, the Netherlands, Norway, Switzerland, West Germany, and Austria — adherents to the 1905 Convention are: Iceland, Israel, Yugoslavia, Poland, Portugal (including the Azores and Madeira), Rumania, Spain, Czechoslovakia, and Hungary).
A convention with the United Kingdom on assistance in civil matters was concluded on August 28, 1930. The convention covers, i.a., service of documents and obtaining evidence. See 114 L.N.T.S. 9. Sweden has not yet ratified the European convention on reciprocal assistance in criminal matters, concluded April 20, 1959. Sweden does not have a treaty with the United States specifically directed at the solution of problems of international co-operation in litigation. However, a consular convention with Sweden, T.S. No. 557 (effective March 18, 1911), provides for the performance of notarial acts and the taking of depositions by consular officials. Cf. Ginsburg & Bruzelius, Professional Legal Assistance in Sweden, 11 Int’l & Comp. L. Q. 997, 1019–21 (1962) (in Sweden, notarial acts do not include the administration of an oath). See also Convention with Sweden for the avoidance of double taxation and the enforcement of rules of reciprocal administrative assistance in the case of income and other taxes, Marth 23, 1939, T.S. No. 958 (effective January 1, 1940); 1940 Sfs 1042 (regulations on application of the Convention).
See Ministry of Justice Circular on Scandinavian co-operation in litigation, October 15, 1958; cf. Philip, The Scandinavian Conventions on Private International Law, 1959 Recueil DES Cours I, 245-348; von Eyben, Inter-Nordic Legislative Co-operation, in 6 Scandinavian Studies IN Law 63 (Schmidt ed. 1962).
See Letter from the Swedish Ministry for Foreign Affairs to the Columbia Law School Project on International Procedure, August 22, 1960 (reporting difficulties experienced in some foreign countries, particularly with regard to service of legal documents in criminal matters). Cf. McCusker, Some United States Practices in International Judicial Assistance, 37 Dep’t OF State Bull. 808 (1957) (ordinarily, foreign documents of any kind may be served on any person within the United States by any person, including a consular official of the foreign government).
The agreement, signed on June 26, 1957, and effective in Sweden since August 16, 1958, authorizes direct correspondence between authorities in Scandinavian states when assistance is sought in serving documents or obtaining evidence. See Ministry of Justice Circular on Scandinavian co-operation in litigation, October 15, 1958. In identifying the appropriate Danish or Norwegian addressee, Swedish authorities may obtain assistance from the legal department of the Swedish Ministry for Foreign Affairs.
See Decree on embassies and consulates, February 3, 1928, § 41 (authorizing the service of legal documents abroad by Swedish diplomatic and consular officials).
See Special Instructions for embassies and consulates, para. 35, amending in part General Instructions for embassies and consulates, February 15, 1928.
See Ginsburg & Bruzelius, Civil Procedure IN Sweden at 4.05.a and 7.03 (1965); cf. Kaplan, von Mehren & Schaefer, Phases of German Civil Procedure I, 71 Harv. L. Rev. 1193, 1202-1206 (1958).
See Code of Procedure (Rättegangsbalk) [hereinafter cited as RB] 33:14; 3 Ekelöf, RäTtegång 189, 193 (1960). But see RB 10:1(5) and RB 10:6; Ginsburg & Bruzelius, op. cit. supra note 8, at 4.23 and 4.27 (special situations in which the summons must be delivered while the defendant is within the court’s territorial verge).
RB 33:4(1); cf. text at notes 88-90 infra.
RB 33:14. The provision is not limited to service within Sweden. However, the Rättegängsbalk also provides that if statutory prescriptions have not been followed, the court may order renewed service. RB 33:23. Further, an extension of time may be granted if the recipient was not afforded a sufficient opportunity to prepare. See RB 32:1, 3.
See 3 Ekelöf RäTtegång 189, 193 (1960).
RB 33:11(1); see RB 33:25 (rendering the certificate of a Swedish consular officer equivalent to that of a stamningsman or other competent process server within Sweden). A non-resident who participates in a Swedish proceeding must designate a representative in Sweden to accept service on his behalf on the first occasion on which the non-resident appears in court. If he fails to do so, all further notices and documents may be served upon him by ordinary mail at his last known address. RB 33:22.
RB 33:11 (2). Courts may seek Ministry assistance pursuant to the general constitutional mandate on co-operation between governmental authorities. See Instrument of Government (Regeringsform) (RF), art. 47.
See Decree on assistance by the Ministry for Foreign Affairs for service of documents abroad, November 24, 1933. The decree applies to requests for assistance submitted by courts, other public authorities, and private persons. It became effective at a time when “party service” was the general rule. Since 1948, court service has been the general rule and party service the exception. See RB 33:4; Ginsburg & Bruzelius, op. cit. supra note 8, at ch. 7 n. 22.
Further information concerning the service requested necessary to satisfy foreign law requirements may be determined by the Ministry in each particular case.
See note 7 supra.
See RB 33:13; Inheritance Code (Ärvdabalk) (ÄB) 14:4.
The regulations note, i.a., (1) in many states, consular service is permitted only when the service is to be made upon a citizen of the state represented by the consul and can be effected without resort to compulsory measures; (2) the identity of the competent foreign authority is to be determined by foreign law; and (3) in certain states, the “competent authority” may be a private attorney rather than a public agency or official.
For example, when the addressee is avoiding service or does not respond to a request to call for the document at the consulate.
For example, when the addressee resides at a distance from the consulate.
See Ginsburg & Bruzelius, op. cit. supra note 8, at 7.04.d.
See id. at 7.04.b (describing provisions for service on defined persons at the addressee’s dwelling or place of business). The Code provision concerning substituted service on an individual, RB 33:8, is expressly limited to cases in which the addressee has a known residence in Sweden.
For example, denial by the addressee of any connection with the matter to which the document relates or the addressee’s asserted lack of knowledge of the language in which the document is written should not deter service.
Cf. Ginsburg & Bruzelius, op. cit. supra note 8, at 7.04.b, text at notes 42-44 (under Swedish law, substituted service, unlike direct personal service, is not effective unless the “substitute” accepts the document tendered to him).
For example, methods of substituted service appropriate under the foreign law.
See text at note 18 supra. 28 Cf. RB 33:14.
A sample form is set out in the consular regulations (see note 7 supra): “The undersigned has this day delivered to (name of addressee) (description of principal document(s) served and attached items). (Name of addressee) took the document in hand but refused to acknowledge receipt. [Or, (name of addressee) refused to take the document in hand, whereupon it was left on a table at his dwelling.] Place, date, signature, official title, stamp.”
RB 33:25. The consular regulations (see note 7 supra) propose the following form of authentication: “It is hereby certified that (name of attesting officer), who signed the above attestation, had authority to do so under … law and that service of the document occurred in the manner prescribed by … law. Place, date, signature official title, stamp.”
Embassy and consular certificates do not issue in the form of sworn statements. See Ginsburg & Bruzelius, op. cit. supra note 8, at ch. 2, text at note 106 (in Sweden, oaths may be administered only by a judge presiding in court). Currently, the charge to a private party for consular certification, whether of consular service, service by a foreign authority, or inability to serve, is 8 Swedish crowns (about $ 1.60). Ordinance concerning fees to be levied at diplomatic missions and consulates, December 20, 1957, 1957 Sfs 695, art. 1M (English translation prepared for the Swedish Ministry for Foreign Affairs). No fee is charged for certificates issued in conjunction with requests emanating from a Swedish court.
See Ginsburg & Bruzelius, op. cit. supra note 8, at 7.04.g (publication service may be directed only as to persons of unknown whereabouts).
See RB 33:4; RB 33:23 (the court may order renewal of defective service); RB 32:3 (time extensions).
RB 35:8; see Ginsburg & Bruzelius, op. cit. supra note 8, at 7.01. 35 See id. at 6.02.
RB 36:19 (witnesses); RB 40:11 (experts); RB 37:4 (parties, on condition that extraordinarily compelling reason justifies absence from the main hearing). 37 RB 35:13(1).
RB 36:16(2).
RB 35:8-11.
See RB 35:12.
See note 1 supra and accompanying text. Two complementary statutes, both based on the 1905 Convention, were promulgated on the same date: Law on proof-taking in a foreign court, and Law on proof-taking for a foreign court, December 20, 1946.
Law on proof-taking in a foreign court, December 20, 1946, § 1.
Law on proof-taking in a foreign court, December 20, 1946, § 3(1). On Swedish rules relating to the examination of witnesses, including (1) the traditional classifications of parties, fact-witnesses, and experts, (2) privileges, (3) the recent transfer of the interrogation function from the court to counsel, see Ginsburg & Bruzelius, op. cit. supra note 8, at 7.36-7.50.
Law on proof-taking in a foreign court, December 20, 1946, § 2. I.e., the joint obligation of two solvent Swedish citizens guaranteeing payment by the party or a cash deposit in an amount estimated by the court as sufficient to cover proof-taking costs. Further prescriptions on payment of costs of proof-taking at a foreign court have been made by decree. See Law on proof-taking in a foreign court, December 20, 1946, § 4; Decree, October 31, 1947. As to a party’s obligation to pay witness fees, see Ginsburg & Bruzelius, op. cit. supra note 8, at 7.45. On cost allocation generally, see id. ch. 10.
Law on proof-taking in a foreign court, December 20, 1946, §3(2); Decree, October 31, 1947, § 1. As a rule, the Ministry forwards the document to a Swedish diplomatic representative abroad for submission to the foreign court through the appropriate foreign authority. However, when the foreign state permits direct consular presentation of requests to its courts, the Ministry instructs the Swedish representative abroad to use that method. See Letter from the Swedish Ministry for Foreign Affairs to the Columbia Law School Project on International Procedure, October 19, 1963.
Decree, October 31, 1947, § 4; see Ministry of Justice Circular on Scandinavian cooperation in litigation, October 15, 1958, note 5 supra.
In executing requests for testimonial evidence, American courts follow domestic procedure and generally appoint a commissioner before whom the testimony is taken. See Smit & Miller, International CO-Operation IN Civil Litigation — A Report ON Practices AND Procedures Prevailing IN THE United States 11-22 (1961). Swedish litigants are not prohibited from obtaining testimony in this form on their own initiative.
However, a Swedish diplomatic or consular officer has authority to record (unsworn) statements concerning legal or economic relationships and to serve such statements on third parties. See Decree on embassies and consulates, February 3, 1928, § 41 (authorizing diplomatic and consular representatives to perform all functions that may be performed by a notary in Sweden); Decree on the office of notary public, May 18, 1945, § 6.
RB 38:3; see RB 39:5(2).
RB 38:2(1); see RB 39:5(1).
For further detail, including privileges that may be claimed by the possessor, see Ginsburg & Bruzelius, op. cit. supra note 8, at 7.48.
See text at notes 41-46 supra.
Cf. Smit & Miller, International CO-Operation IN Civil Litigation — A Report ON Practices AND Procedures Prevailing IN THE United States 22-25 (1961) (in many instances, a foreign litigant may obtain more documentary evidence in the United States than would be available to him in his own country).
Cf. Ginsburg & Bruzelius, op. cit. supra note 8, at ch. 7 n. 366 (all documents received or prepared by public authorities are regarded as “official” and, in the absence of express statutory exception, accessible to private persons).
Cf. id. at 7.48, text at notes 463-65 (the customary form of authentication for documents generally in Sweden is the attestation of two witnesses — the witnesses need not be notaries).
Rules have been provided for special cases. E.g., Law on personal status cases with international aspects, July 8, 1904, 5:5 (when a person is declared incompetent by a foreign authority, the competence of the foreign authority to issue the declaration is to be established by the attestation of a diplomatic or consular official stationed in the foreign country); text at note 30 supra (diplomatic or consular officials may certify the competence of a foreign authority to attest to the validity of service made abroad).
See Ginsburg & Bruzelius, op. cit. supra note 8, at 7.50.
See Decree on embassies and consulates, February 3, 1928, § 41; Decree on the office of notary public, May 18, 1945, § 6.
See generally Eek, Internationell Privaträtt 102, 183-95 (1962). The principal exceptions are cases in which the conflict of laws rule itself is so formed that application of foreign law depends upon specific claim thereof by a party. Karlgren, Internationell Privat-Och Processrätt 74 (2d ed. 1960). See, e.g., Law on the death estates of citizens of other Nordic countries who died residing in Sweden, March 1, 1935, §§ 1-4, 7; Eek, op. cit. supra, at 186 n. 61 (as to a decedent domiciled in Sweden less than five years at the time of his death, the decedent’s national law will be applied in lieu of Swedish law, but only upon specific requests by an heir, legatee, or devisee; when found necessary by the court, the petitioner may be required to prove the contents of applicable Nordic law).
But see text at notes 65-66.
Compare Eek, op. cit. supra note 59, at 186-89, with id. at 190-95.
Eek, op. cit. supra note 59, at 186. Accordingly, foreign law might appropriately be characterized as raising an issue of law rather than one of fact. But cf. Bolding, Aspects of the Burden of Proof, in 4 Scandinavian Studies IN Law 9, 12 (Schmidt ed. 1960): “Swedish law … knows no jury system and … consequently is not familiar with the Anglo-Saxon distinction between questions of law and questions of fact.”
See Letter from the Swedish Ministry for Foreign Affairs to the Columbia Law School Project on International Procedure, August 22, 1960; Karlgren, op. cit. supra note 59, at 75. The parties as well as the court may seek assistance from the legal division of the Ministry. E.g., 1950 SvJT 958. In the main, inquiries referred to Swedish representatives abroad concern foreign marriage and divorce laws. The majority of such inquiries are referred by the Swedish representative to local attorneys, usually those retained by the embassy or consulate as counsel on questions of local law. The person or authority in Sweden initiating the inquiry bears the expenses. Letter from the Swedish Ministry for Foreign Affairs to the Columbia Law School Project on International Procedure, January 28, 1963. Pursuant to the Nordic convention on succession, 1935 SÖ 17, and the enabling legislation enacted in each of the Nordic states, see note 59 supra, in cases in which an heir seeks application of the law of the decedent’s nationality, information as to the content of that law may be obtained in the following manner: A letter rogatory is sent to the Ministry of Justice or (in Sweden) the Ministry for Foreign Affairs of the country whose law is to be applied. The authority in the state to which the letter is forwarded is obliged to provide information as to matters regulated by express statutory provision. As to matters not so regulated, information is to be given “to the extent circumstances permit.” This deliberately indefinite terminology has been interpreted to permit the authority in the receiving state to respond in a doubtful case by referring to pertinent decisions and legal literature without offering an expert opinion as to the appropriate resolution. See Philip, The Scandinavian Conventions on Private International Law, in 1959 Recueil DES Cours I, 245, 275-76. It has been suggested that this procedure may be employed to determine the law of another Nordic state in situations other than the one to which the convention relates. See Eek, op. cit. supra note 59, 189 at n. 74.
See Gärde, Engströmer, Strandberg & Söderlund, Nya RäTtegångsbalken 478 (1949).
RB 35:2 (“Proof of circumstances that are generally known is not required. Nor is proof required as to legal rules. If foreign law is to be applied and if its contents are not known to the court, the court may direct a party to present proof thereof.”). See Bill of Exchange Law (Växellag) § 87 and Check Law (Checklag) § 65, both of May 13, 1932; Code of Judicial Procedure (Finland) 17:3 (to the same effect); cf. Code of Judicial Procedure (Norway) § 191 (the court may request that the parties submit detailed proof of foreign law). See also Law on foreign arbitration contracts and arbitration awards, June 14, 1929, § 13 (“If, in a case or matter concerning a foreign arbitration contract or arbitration judgment, the foreign law that is to be applied is unknown to the court or other authority by whom the law is to be applied, the court or other authority may direct that a party present proof thereof.”). See also note 59 supra.
Eek, op. cit. supra note 59, 188 at nn. 69-70.
But see text at notes 68-70 infra for the exceptional case in which the burden of producing evidence of foreign law is explicitly assigned to the plaintiff.
Law on personal status cases with international aspects, July 8, 1904, 7:4.
See Eek, op. cit. supra note 59, at 191 and authorities cited therein at nn. 81 and 82.
Cf. Karlgren, op. cit. supra note 59, 75 at n. 2 (“That this provision can, by analogy, be applied to cases outside the province of family law, is however not so certain.”).
1950 SvJT 958.
See Schmidt, Statutory Construction, in 1 Scandinavian Studies IN Law 155, 163 (1957); Wetter, THE Styles OF Appellate Judicial Opinions 16-26, 79-104 (1960).
See Eek, op. cit. supra note 59, 190 n. 78; cf. Ginsburg & Bruzelius, op. cit. supra note 8, at 1.30 (decisions of Swedish lower courts are not separately reported, but may be summarized or extracted in appellate court case reports).
Cf. text at notes 68-70 supra.
See Karlgren, op. cit. supra note 59, 75 at n. 2; cf. Code of Judicial Procedure (Finland) 24:3(2) (expressly providing that Finnish law is to be applied in the event that the content of foreign law is not proved by the parties or ascertained, by the court on its own initiative).
See Eek, op. cit. supra note 59, at 193-94 (giving as example questions as to the custody of a child or the disposition of perishable commodities).
See Decree on service of documents at the request of a foreign authority, April 30, 1909.
For example, foreign diplomatic or consular officials, or officers commissioned to act on behalf of a foreign court.
For example, the parties, their representatives, or a private Swedish attorney.
See Decree on service of documents at the request of a foreign authority, April 30, 1909, § 1. The “authorities” that may dispatch requests are not enumerated. Nor has submission through channels been demanded.
See Letter from the Swedish Ministry for Foreign Affairs to the Columbia Law School Project on International Procedure, August 22, 1960.
Cf. Decree on service of documents at the request of a foreign authority, April 30, 1909, § 7 (requests by consular representatives stationed in Sweden); text at note 96 infra. The decree does not indicate that requests must be authenticated. In doubtful cases, however, the Ministry may ask for appropriate proof.
See Letter from the Swedish Ministry for Foreign Affairs to the Columbia Law School Project on International Procedure, August 22, 1960. In criminal cases, if the document is not written in English, French, or German, or in a Nordic language, translation will usually be required. See Letter from the Swedish Ministry for Foreign Affairs to the Columbia Law School Project on International Procedure, October 19, 1963.
Decree on service of documents at the request of a foreign authority, April 30, 1909, § 2.
Generally, a certified copy is used for service, and proof of service is endorsed on or attached to the original. See Decree on service of documents at the request ot a foreign authority, April 30, 1909, § 3(2).
See Decree on service of documents at the request of a foreign authority, April 30, 1909, § 1. If it is found that the person to be served resides or is staying in another county, the papers are transferred directly to the administrative board for that county and a notice of the transfer is sent to the Ministry for Foreign Affairs. Decree on service of documents at the request of a foreign authority, April 30, 1909, § 4. On the county administrative boards (county governors’ offices), see Andrén, Modern Swedish Government 122-23 (1961).
Decree on service of documents at the request of a foreign authority, April 30, 1909, § 2(3). Excluding the possibility of service in a manner that does not comply with Swedish law or foreign law, Sweden’s convention with the United Kingdom on assistance in civil cases expressly provides for service in accordance with Swedish law when the request is silent on the point. See Decree, April 18, 1933.
Decree on service of documents at the request of a foreign authority, April 30, 1909, §2(1). On delivery by process server, see Ginsburg & Bruzelius, op. cit. supra note 8, at 7.04.d. On personal service upon the addressee and forms of substituted service permitted when personal service cannot be effected, see id. at 7.04.a, b.
See id. at 7.04.C.
Nor is service through the offices of postal authorities used when service of a Swedish legal document is effected by a party rather than by the court. On the distinction between court service and party service, see Ginsburg & Bruzelius, op. cit. supra note 8, at ch. 7 n. 22. See also Decree on service (Delgivningskungörelse), July 10, 1947, § 6 (expressly prohibiting the use of registered or insured mail for service of legal documents).
Decree on service of documents at the request of a foreign authority, April 30, 1909, § 2(2).
For sample proof of service forms, see Ginsburg & Bruzelius, op. cit. supra note 8, at Appendix A.
Decree on service of documents at the request of a foreign authority, April 30, 1909, § 3.
Decree on service of documents at the request of a foreign authority, April, 30 1909, § 4.
Decree on service of documents at the request of a foreign authority, April 30, 1909, § 5. Pursuant to a convention with Germany, requests for service from German authorities are executed without charge. See Decree, February 11, 1910.
Decree on service of documents at the request of a foreign authority, April 30, 1909, § 7.
See Decree, April 18, 1935.
The provision does not state that the document (as distinguished trom the request) must be translated.
If acceptance of a document emanating from a French authority is refused by the addressee — a factor which does not prevent completion of service under Swedish law, see Ginsburg AND Bruzelius, op. cit. supra note 8, at 7.04.a, text at note 35, a detailed account should be given of the circumstances under which the document was tendered and the reasons given by the addressee for refusal to accept it. Decree on service of documents at the request of a foreign authority, April 30, 1909, § 4(2). This provision is the result of a special agreement with France concluded on March 7, 1956.
See Decree on service of documents at the request of a foreign authority, April 30, 1909, § 8; Ministry of Justice Circular on Scandinavian co-operation in litigation, October 15, 1958.
See Ginsburg & Bruzelius, op. cit. supra note 8, at 6.03. On American procedures for taking depositions (examinations of witnesses other than before a court) in foreign countries, see Smit, International Aspects of Federal Civil Procedure, 61 Colum. L. Rev. 1031, 1053-59 (1961); Smit & Miller, International CO-Operation IN Litigation — A Report ON Practices AND Procedures Prevailing IN THE United States 48-62 (1961).
See Decree on the office of notary public, May 18, 1945, § 6.
In addition to perjury provisions, applicable only when testimony is given in court, see Ginsburg & Burzelius, op. cit. supra note 8, at 7.44, the Swedish Penal Code contains a provision directed against intentionally false signed written statements tending to endanger ascertainment of the rights of another. SL 13:11 (BrB 15:11). Possibly this provision might be invoked against an intentionally dishonest deponent whose out-of-court signed statement has been taken in Sweden.
See text at notes 41-48 supra.
A foreign arbitration tribunal is not regarded as a judicial authority. Cf. Arbitration Law, June 14, 1929, § 15(2) (specifically authorizing proof-taking at a court on request of a Swedish arbitration panel); Ginsburg & Bruzelius, op. cit. supra note 8, at 9.09.C, text at notes 191-92.
See Law on proof-taking for a foreign court, December 20, 1946, § 1. See also Law on proof-taking for certain international tribunals, December 20, 1946 (similar in scope but applicable to requests by judicial and arbitration panels concerned with the resolution of controversies between nations).
See Letter from the Swedish Ministry for Foreign Affairs to the Columbia Law School Project on International Procedure, August 22, 1960.
Law on proof-taking for a foreign court, December 20, 1946, § 1.
See Law on proof-taking for a foreign court, December 20, 1946, § 11 (pursuant to convention with foreign states, the cabinet may authorize direct correspondence between courts or presentation to a Swedish court by a foreign consul stationed in Sweden).
See Decree, October 31, 1947, § 1. A translation may be certified by a Swedish consular or diplomatic representative abroad or by a notary public in Sweden. See Decree on the office of notary public, May 18, 1945, §§6, 12 (notaries in Stockholm must be conversant with English, French, and German); Decree on embassies and consulates, February 3, 1928, § 41.
See Law on proof-taking for a foreign court, December 20, 1946, § 2 (a witness is to be heard at the lower court for the district in which he resides or is staying or, if the witness consents, at another lower court; property is to be inspected by the lower court for the district in which the property is situated; other requests may be executed by the lower courts to which they are presented); § 3 (if the court to which a request has been forwarded finds that it is not a proper forum, but that another lower court is, it may transfer the request — notice of the transfer must be dispatched to the Ministry by the transferor court); cf. Ginsburg & Bruzelius, op. cit. supra, note 8, at 4.36 (in domestic civil proceedings, a case may not be transferred by one lower court to another). In criminal cases, notice of the time of proof-taking is given to the parties as a matter of course; in other cases, notice will be given on request. Law on proof-taking for a foreign court, December 20, 1946, § 4.
Law on proof-taking for a foreign court, December 20, 1946, § 5, see text at notes 34-40 supra. On the form of witness examination in Sweden, see Ginsburg & Bruzelius, op. cit. supra note 8, at 7.43 (under the present Code, interrogation of witnesses is becoming the function of counsel).
See Law on proof-taking for a foreign court, December 20, 1946, § 8; see 1 Ekelöf, RäTtegång 30 (1957) (distinguishing between obligatoriska (mandatory) and fakultativa (waivable) procedural rules). One “mandatory rule” is explicitly stated in the statute: A defendant in a criminal case may not be examined under oath or affirmation. Law on proof-taking for a foreign court, December 20, 1946, § 1.
See RB 5:6.
Law on proof-taking for a foreign court, December 20, 1946, § 8.
Law on proof-taking for a foreign court, December 20, 1946, § 7. On privileges under Swedish law, see Ginsburg & Bruzelius, op. cit. supra note 8, at 7.41 and 7.42 (discussing obligation to remain silent to prevent disclosures detrimental to national security, prohibition against disclosure of confidential communications, constitutional guarantee of anonymity to authors and news informants, privilege based on family relationships, protection against self-or family incrimination, and qualified privilege with respect to trade secrets).
Law on proof-taking for a foreign court, December 20, 1946, §§ 10, 12. In civil cases, nations that adhere to either the 1905 or the 1954 Hague Convention are not charged for costs of service connected with the proof-taking or for interpreter’s fees. As to France, fees for the attendance of witnesses are also excluded from the statement of costs. Experts’ fees, other than costs for blood-grouping tests, are the only charges billed to Norwegian and Danish courts. Experts’ fees are the only charges billed in connection with a request on behalf of a litigant proceeding in forma pauperis in a nation adhering to the 1954 Hague Convention. No charges are made for execution of requests presented pursuant to the 1956 United Nations convention on mutual assistance in enforcing support obligations. See Decree, October 31, 1947, § 2. In criminal cases, requests emanating from Belgium, Denmark, Finland, and Norway are executed without charge. Requests from France are also executed without charge, except to the extent that fees payable to experts exceed the Swedish equivalent of fifty new French francs. See Decree, October 31, 1947, § 3.
Law on proof-taking for a foreign court, December 20, 1946, § 3. Cf. Decree, October 31,1947, § 1 (when execution of letters presented to a Swedish court directly by a foreign court or by a foreign consul might compromise Swedish sovereignty or security, the court should refer the letters to the Ministry for Foreign Affairs).
RB 41.
Law on oath-taking to safeguard legal rights abroad, December 20, 1946.
See RB 41:1; Ginsburg & Bruzelius, op. cit. supra note 8, at 6.03.
See Report of Advokat Arthur Boström and Advokat Ormonde Goldie to the Columbia Law School Project on International Procedure, March 1962.
Law on oath-taking to safeguard legal rights abroad, December 20, 1946, § 1.
Law on oath-taking to safeguard legal rights abroad, December 20, 1946, §2 (the declarant must be at least 15 years of age, of sound mind, and cognizant of the significance of an oath).
Law on oath-taking to safeguard legal rights abroad, December 20, 1946, § 3.
The statute was intended to provide a means through which a Swedish resident might satisfy a foreign demand for a “notarized” (sworn) statement. Cf. text at note 102 supra.
See text at notes 104-118 supra.
See RB 38:2(1); Ginsburg & Bruzelius, op. cit. supra note 8, 7.48.
RB 38:4, 5. Although the Rättegångsbalk expresses a preference for original documents (see RB 38:1), in practice, authenticated copies or excerpts are generally accepted by the court if there is no reason to doubt their accuracy.
RB 41:1; see text at notes 119-22 supra.
See RB 38:3.
See text at notes 77-100 supra.
On statutory materials and case reports in Sweden, see Ginsburg & Bruzelius, op. cit. supra note 8, at 1.28-1.30.
See Freedom of the Press Act (Tryckfrihetsförordningen); Ginsburg & Bruzelius, op. cit. supra note 8, at ch. 1 n. 27.
See Malmgren, Sveriges Grundlagar 209 (7th ed. Fahlbeck & Sundberg 1957). Ordinarily, a foreigner may directly approach the appropriate authority in Sweden with a request for a properly attested copy of a Swedish official document.
Freedom of the Press Act 2:1.
This comment and an elaborative discussion appear in Herlitz, Publicity of Official Documents in Sweden, 1958 Public Law 50.
The Rättegångsbalk expresses a preference for full disclosure of documentary evidence. However, if a document contains information that may or must be withheld from public view, an excerpt or summary of relevant non-privileged portions may be submitted. See RB 38:1.
por the preparation and execution of legal documents, such as wills, incorporations, and transactions relating to real estate, the assistance of Swedish notaries is neither required nor invoked in practice.
See Decree on the office of notary public, May 18, 1945, § 6; Decree on embassies and consulates, February 3, 1928, § 41. Swedish officials will ordinarily provide all assistance necessary to permit proper authentication of copies of Swedish official documents to be used abroad. On American requirements for the authentication of foreign official documents, see Smit, International Aspects of Federal Civil Procedure, 61 Colum. L. Rev. 1031, 1062-71 (1961).
The embassy or consulate to which an inquiry is addressed may, in turn, refer the question to the legal division of the Ministry for Foreign Affairs.
On source materials generally, see Ginsburg & Bruzelius, op. cit. supra note 8, at 1.23-1.27. For a description of statutory compilations, legislative preparatory reports, and and case law publications, see id. at 1.28-1.32.
See id. at 2.01-2.03, 2.05, and 2.06.a. 144 See id. at 2.04.d.
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© 1965 Martinus Nijhoff, The Hague, Netherlands
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Boström, A., Bruzelius, A., Goldie, O., Ginsburg, R.B. (1965). International Co-Operation In Litigation: Sweden. In: Smit, H. (eds) International Co-Operation in Litigation: Europe. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9208-8_14
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