1 Swedish Supreme Court ruling NJA 1986 p.

119 extract Carl Friederichs Gesellschaft mit beschrnkter Haftung, Hamburg, and Kinnegrip Aktiebolag, Lidkping, participated during the autumn 1975 as exhibitors at the 46th International Auto Exhibition IAA in Frankfurt am Main. The companies had exhibition cases next to each other. When Kinnegrips on Sept. 10, 1975 was setting up its case, one of companys co-workers drove a car on to Friederichs case and damaged it. After Friederichs had brought proceedings against Kinnegrip before the Landgericht Frankfurt am Main and claimed alleged damages for 3 059,95 DM together with 5 per cent interest thereupon until payment takes place, judgment was given by the court May 6, 1980, whereby Kinnegrip was ordered to pay 2 769,28 DM together with interest to Friederichs. The judgment became final. Friedrichs brought proceedings before the Court of Lidkping asking the court to give judgment, without ruling on the merits of the case, ordering Kinnegrip to pay in accordance with the German judgment the sum of 2 769,28 DM together with interest. Kinnegrip disputed the claim. Friederichs stated that: The German court has had jurisdiction to hear the case. Kinnegrip has not contested the jurisdiction of the German court, instead it has participated in the proceedings during both the written preparations and the main proceedings. During which, Kinnegrip has been represented by German counsel. In the proceedings Kinnegrip did not dispute liability as such, only its extent. Friederichs produced evidence about the extent of the damage, whereas Kinnegrip by free will abstained from this. The German judgment should be given legal effect in this country. In support of this, the cases NJA 1935 p. 611 and 1973 p. 628 were cited. In case the judgment has no legal effect, it should at least be evaluated as evidence. Kinnegrip stated the following: Recognition of such a foreign judgment as the one in question, require statutory law. There is no such statutory rule. The prerequisite for recognising a foreign judgment in this country nevertheless, is a jurisdiction agreement. There is no such agreement as between the parties. It is further disputed that the German judgment should be given any value as evidence in Sweden. It is true that Kinnegrip has participated in the proceedings and that it was represented by a German counsel. However, the company has neither submitted nor replied, but has been passiv during the trial. Thus, no counter-proof has been presented. The reason for the passivity of the company is the knowledge that a German judgment cannot be enforced in Sweden. [The German judgment did not constitute enough of evidence.]

Judgment of Supreme Court: In Sweden, the well-established principle for recognition of foreign judgment is that recognition presupposes statutory law. It is true that in the case NJA 1973 p. 628, a departure was made from that principle, in that a foreign judgment for a monetary claim was made the basis for an equivalent Swedish judgment. However, the parties had in that case through an agree Carolina Saf

2 ment given the court of the country in which the foreign judgment was given exclusive jurisdiction to hear any disputes between themselves. It is a long step from there to the situation where a party without any prior agreement on jurisdiction replies to an action brought in a foreign state. In such a case, completely different concerns will apply compared to where an explicit agreement has been entered into regarding the jurisdiction of the foreign court. In regard of this point, it is well worth reminding that the latest Swedish convention of interest in this context, namely the Convention on enforcement and recognition of foreign civil judgments entered into in 1982 with Austria, as a ground for enforcement states the case that the defendant explicitly has submitted to the jurisdiction of the foreign court, but not the case that the defendant without any reservations has replied to the action brought. Accordingly, enforcement of foreign judgments regarding the latter case must be considered to presuppose statutory law. Kinnegrip has not explicitly submitted to the jurisdiction of the German court. Nor contains Friederichs statements any circumstances regarding Kinnegrips which could be considered as such a submission. On account of what has been stated, the German judgment cannot be enforced in this country.

Carolina Saf