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Arbitration
A recent Supreme Court decision considered the implications where an application is made for a court order for the production of documents within the context of arbitration. The court stated that guidance can be obtained from the 2010 International Bar Association Rules on the Taking of Evidence in International Arbitration even in the case of domestic arbitration.
Supreme Court rules on doctrine of assertion
Concorp Scandinavia AB brought an action in the district court against Karelkamen Confectionary AB. Karelkamen argued that Concorp's action should be dismissed, claiming that the dispute should be resolved by arbitration in accordance with the Arbitration Act. The district court denied Karelkamen's motion and the decision was appealed to the Supreme Court.
The Svea Court of Appeal recently considered whether an arbitral award should be set aside on the grounds of the disputed substantive agreement not being arbitrable under the Arbitration Act due to its alleged violation of then-mandatory Soviet law and being punishable under Soviet criminal law. The court took an arbitration-friendly approach to arbitrability in an international context.
The Supreme Court has considered what is required for a foreign arbitral award to be recognised and enforced in Sweden by applying the Swedish Arbitration Act, which goes back to the New York Convention of 1958. The court had to determine whether the respondents had been duly notified of the arbitration proceedings against them.
The Supreme Court recently handed down judgment in a case involving arbitrator bias. The issue was whether the disputed award should be set aside due to alleged bias in the proceedings, on the basis that the arbitrator had previously been appointed in several disputes in which a party was represented by counsel from a particular law firm.
SCC's new rules on emergency arbitrators
The Stockholm Chamber of Commerce (SCC) has adopted an entirely new set of rules for the appointment of 'emergency arbitrators'. The rules should be analyzed by any party that has incorporated the SCC's dispute resolution provisions into an agreement, and parties already involved in a contentious matter would be well advised to attempt to anticipate whether the new rules are to the advantage of any of the parties.
Aviation
The government has put forward a bill which, if accepted by Parliament, will lead to several considerable changes to air traffic legislation. The bill proposes the opening up of local air traffic control to competition, the introduction of random breathalyzer tests for pilots and the institution of several new criminal provisions related to air traffic.
Banking
A Swedish appeal court recently ruled on a bank's liability for loss suffered by a borrower as a result of the bank's failure to obtain possession of a real estate mortgage certificate. The court ruled in favour of the bank and ordered the defendant to repay the amount due under the loan. The verdict implies that courts will impose a relatively high threshold for a pledgee to be considered negligent to the point of incurring liability for damages.
The Supreme Court recently ruled on the liability of two individuals who had assisted in a scheme to defraud Santander. The defendants had signed an agreement in which they falsely confirmed delivery of a boat and a cash payment. Santander sued for damages. The court's opinion was divided, but it was decided that the defendants should pay one-fifth of Santander's loss.
The Basel III accord aims to manage liquidity risk in financial institutions by, among other things, introducing a liquidity coverage ratio. The Swedish Financial Supervisory Authority is one step ahead, and has already adopted new regulations that require Swedish financial institutions to adhere to a liquidity coverage ratio designed to measure how much high-quality liquid assets are necessary to manage a situation of severe stress.
A recent ruling from the Svea Court of Appeals has sparked a discussion regarding the drafting of market-disruption clauses in financing agreements. Such clauses tend to grant the bank or credit institution a right to raise or replace the reference rate in certain circumstances, but do not normally include a corresponding obligation to lower the rate should the refinancing costs decrease.
Capital Markets
In June 2011 the EU Alternative Investment Fund Managers Directive was adopted by the European Parliament and Council. Following the implementation of the directive, several managers of funds that are presently not subject to supervision will be covered by the new regulation.
The Swedish Financial Supervisory Authority (FSA) recently published its supervision report for 2012. According to the report, the FSA has, among other things, initiated an investigation into complex products, worked on a special project on how owner and management assessments can be deepened and observed deficiencies regarding internal governance and control at Swedish firms.
The Swedish Financial Supervisory Authority and the China Securities Regulatory Commission recently entered into a memorandum of understanding on mutual regulatory cooperation in relation to the Chinese capital markets. The memorandum enables Swedish institutional investors – for the first time – to apply for a licence to invest directly in Chinese capital markets.
The Financial Supervisory Authority (FSA) recently submitted its response to the European Commission's proposal for the EU Markets in Financial Instruments Regulation and the EU Markets in Financial Instruments Directive II. This update summarises the key points of the FSA's opinion.
The Financial Supervisory Authority has introduced new regulations on variable compensation. With regard to employees whose actions can have a material impact on the firm's risk exposure, companies must apply the regulations and the general guidelines stipulated therein to all decisions regarding remuneration for the period before January 1 2010.
One Year With MiFID: The FSA's Assessment
The Swedish Financial Supervisory Authority (FSA) has investigated over 100 financial institutions to identify problems and issues arising from the implementation of the EU Markets in Financial Instruments Directive. Its overall evaluation is that the institutions examined have taken steps to adapt to MiFID and that most fulfil the regulations' requirements. The FSA is planning several investigations based on its results.
Commercial Property
The Land Code includes an explicit regulation regarding how landlords shall act towards bankrupt tenants. However, when a decision is made concerning company reorganization for a tenant, the rules are not as clear. One specific question relates to when tenant adaptations are to be carried out by the landlord and when they must be executed during the period of company reorganization in order to be completed on time.
Freehold Flats to be Introduced
A new form of real estate - the freehold flat - is due to be introduced in Sweden in 2009. For parties that prefer to own property rather than renting it, this form of ownership will create certain benefits compared with cooperative apartments. Among other things, the freehold flat can be pledged and let in the same manner as a house.
In the current volatile real estate market, sharing risk has become increasingly popular. Establishing property joint ventures for development projects, for example, is a popular way of doing this. This update outlines some features of Swedish property joint ventures, and the issues to be considered before entering into such a venture.
Company & Commercial
Inherited personal liability revisited
A recent Supreme Court ruling established the level of due diligence that new board members must exercise when taking office in the event of an inherited capital shortage from the former board of directors. A new board member should still make his or her best efforts to examine the financial situation, but such examination can under most circumstances end retrospectively with the latest audited and approved annual report.
An end to late payments?
Late payments and long contractual payment periods have been debated in both Sweden and the European Union for some time. A recent government bill contains proposals designed to discourage extended credit times, which increase corporate finance and management costs and promote unfair competition. The new legislation may be a step in the right direction, but its impact remains to be seen.
A recent Court of Appeal case illustrates the risk that parties run when an agreement is governed by a law of a different language from that used in the agreement itself. This dispute was the outcome of imprecise legal drafting, and highlights the importance of avoiding copying and pasting boilerplate clauses whenever possible.
Swedish law allows for a number of principal-agent relationships – one of them being the commission agent. A recent Supreme Court ruling has given some guidance on probably the most important issue when setting up a commission agent agreement: how to secure goods in the event of an agent's bankruptcy.
In a recent ruling the Northern Norrland Court of Appeal had to consider two questions regarding commercial agents. First, what type of commercial relationship falls within the Commercial Agents Act's definition? Second, can the act's mandatory provisions regarding severance compensation be applied by analogy in a case where the act does not directly apply?
A recent case regarding a production line that was unsuitable for industrial production sheds some light on whether a failed service should be regarded as a breach of contract. The case confirms the need for the buyer to specify clearly the object of the agreement. This appears to be the first time that the courts have clearly identified the two major objects of an agreement: the duty to achieve a specific result and the duty of best efforts.
Competition
Following an in-depth investigation, the Competition Authority has unconditionally cleared AstraZeneca's proposed divestment of its subsidiary AstraZeneca Tika SNC – a portfolio of over-the-counter products – to GlaxoSmithKline. Both companies manufacture and sell, among other things, non-prescription drugs for pain and fever.
The Competition Authority has ruled that an order issued by the Market Court in 2001 prohibiting Scandinavian Airlines Systems from applying its EuroBonus can no longer be enforced. It did not examine whether such reintroduction of the scheme on routes exposed to competition would represent an infringement and it is for the airline to assess on what routes the scheme can now be applied.
Court Dismisses Merger Decision
The Stockholm District Court has dismissed an application by the Competition Authority to block a merger between hardware manufacturers Assa Abloy and Copiax because the action was not filed within three months of an in-depth investigation being launched. The authority has decided not to appeal the decision and the merger will now go ahead.
The government has commissioned the Competition Authority to present specific proposals for strengthening competition on the basis of a broad review of the competitive situation in Sweden. The authority provides reports to the government on a regular basis, but this new project is more wide ranging and includes reviews and presentations of both existing and new proposals.
Parliament has voted in favour of the government's plan to part-privatize the monopoly chain of state-run pharmacies, Apoteket, and open up the country's market for prescription and non-prescription drugs to competition. In doing this, Parliament has given the government the green light to begin the restructuring process for Apoteket.
Corporate Finance/M&A
Overview
Including: Market Trends; Deal Financing; Deal Process; Significant Transactions; Outlook.
Simplified mergers and demergers
Changes for simplified mergers and demergers, which recently came into force, aim to reduce the administrative burden on companies. The boards of the companies which are involved in the merger must inform their shareholders at a general meeting of any significant changes in relation to the company's assets or liabilities which have occurred after the issuance of the merger plan.
There are clear reasons to take the Public Procurement Act into consideration in connection with M&A transactions. In conjunction with due diligence, it is important for Swedish companies to be especially vigilant when entering into contracts which are subject to the act, or where public contracts exist and the planned transaction risks involving an illegal direct award of contract which violates the act.
How the purchase price should be determined is an integral part of a share purchase agreement. Two different approaches prevail: the closing balance-sheet adjustment and the fixed purchase price or 'locked box' mechanism. Although the closing balance-sheet adjustment may be the most common approach in the current market environment, the locked box mechanism can be the preferred route from the seller's perspective.
Earn-out models for mergers and acquisitions
Normally, the valuation of a company is based on its past performance and projected future performance. While the seller may be confident of the company's future growth, the buyer may be reluctant to pay the seller the whole purchase price upfront. This problem can sometimes be mitigated by the parties agreeing on the introduction of an earn-out provision into the transaction, thus spreading the risk between the seller and buyer.
The Commerce Stock Exchange Committee's revised rules for public takeover bids on the Swedish stock market have been adopted by NASDAQ OMX Stockholm and NGM Equity. The review of the rules has been undertaken in light of recent developments on the Swedish and international capital markets and a number of high-profile transactions.
The harsher financial market conditions over the last 12 months have had an adverse impact on the way in which deals are carried out, especially in relation to the purchaser's ability to secure financing. The slowdown in M&A activity has resulted in a less competitive market, putting the purchaser in a better position to negotiate favourable agreement terms at the expense of the seller.
Corporate Tax
The government recently proposed to extend existing laws which restrict the possibility of deducting interest expenses incurred on debt owed by affiliated parties relating to intra-group acquisitions of shares to include restrictions to cover all debt owed between affiliated parties. According to the government, the proposed new law will partly finance a reduction of the company tax rate.
The government has proposed changes to the taxation of certain loans granted by legal entities equivalent to Swedish aktiebolag (limited companies) to related parties, and plans to stop the deduction of interest paid on such loans. However, certain issues remain unresolved. For example, the question of which foreign legal entities are to be considered equivalent to aktiebolag remains unanswered.
Proposals to Limit Interest Deductions
The government has proposed tax regime changes which, among other things, will limit the ability of Swedish companies to make interest deductions in respect of internally financed acquisitions of shares (or similar instruments) in a commercial entity with which it has privity or unity of interest.
The government has proposed changes which would entitle Swedish companies to make contributions to a shelf company and would restrict group contributions from being made where they would give rise to a loss in the contributing company. It also proposed to eliminate the possibility to engage in underpriced transactions, and announced encouraging guidelines on future fiscal policy.
The government has proposed changes to Chapter 39a of the Income Tax Law. These changes are being considered following the European Court of Justice ruling in Cadbury Schweppes. The court ruled that the existence of controlled foreign company regulations is incompatible with Articles 43 and 48 of the EU treaty. It is proposed that the revised regulations will enter into force from January 1 2008.
Government Proposes Amendments to CFC Rules
The government has proposed changes to the controlled foreign company (CFC) rules. The proposal follows the European Court of Justice decision in Cadbury Schweppes, in which the court declared that general CFC rules are in breach of EU law. The Swedish proposal introduces a general exception for corporations which are resident in a member state of the European Economic Area.
E-commerce
Overview
Including: Area of Application; The Duty of Information; The Right of Withdrawal; Exemptions
The Nordic consumer ombudsmen have agreed on a position statement regarding e-commerce and marketing in the Nordic market via the Internet. The statement establishes standards of conduct to be observed by businesses in online consumer transactions. It provides rules on marketing methods, information obligations, electronic contracts and internet payments, among other things.
Sweden and other EU member states have recently proposed amendments to the EU Directive on Data Protection. Sweden found the implementation of the directive difficult, due to the restrictions placed on the processing of everyday data. The argument behind the proposal is that data protection will be improved if unnecessary and costly requirements are removed.
Recent and pending court cases highlight the interplay between internet publishing and freedom of expression. Individuals can now publish material on the Internet which is not subject to the editorial restraints that govern media publication, and this has created a greater focus on privacy principles.
Three cases regarding the copyright protection of race programmes and fixture lists under the EU Database Directive have been referred to the European Court of Justice for preliminary rulings. They raise interesting questions on the directive’s application, and their outcomes will be of particular importance to the media sector.
The use of cookies in commercial communications is being debated both in Sweden and the European Union. Whatever the legislative outcome, public awareness has been raised by the debate and customers are now likely to show greater interest in how their personal data is used.
The E-commerce Law, which is a result of the implementation of the EU E-commerce Directive, is due to come into force later this year. This update outlines the effects that the law will have on e-commerce in Sweden.
Employment & Labour
Right to employment after parental leave
The Labour Court recently examined the conditions for offering an employee returning from parental leave a different position from that which the employee held before the leave. Following an employee's return from maternity leave, she was offered a less favourable position with fewer hours. The Labour Court found that the employer was in breach of the Parental Leave Act and ordered it to pay the employee damages.
New law on temporary employment agency work
A new act regarding temporary employment agency work has recently entered into effect. It includes the regulation of both temporary employment agency companies and client companies. The basic rule is that an employee should be treated in the same way as if he or she was employed directly by the client company. However, this only applies to certain terms of employment.
In a recent ruling, the Labour Court declared a settlement agreement regarding termination of employment null and void. Since the employer had provided the employee with inaccurate information, with the sole purpose of forcing the employee to accept the settlement agreement, the court declared that the employee had been misled. Objective grounds must exist in order for an employer to terminate an employment contract.
There are two main points to remember in connection with fixed-term employment contracts. First, certain conditions must be met, or the fixed-term employment will transfer into employment for an indefinite period. Second, the possibility to terminate the employment before the expiry date must be specifically agreed. Other rules may also apply if the employer is bound by a collective bargaining agreement.
When processing information reported through a whistleblowing system, an employer must observe the rules on the protection of personal data. In general, data regarding criminal offences may be processed only by the Swedish authorities, but information related to key employees or managers involved in serious criminal activities is excluded from this rule.
Labour Court rules on age discrimination
In December 2010 the first dispute regarding age discrimination in Sweden was settled by the Labour Court. In the case before the court, a 62-year old job applicant, who was neither offered the job nor called to an interview, challenged the recruitment procedure, claiming that he was better qualified for the job than the applicants who were called to interview.
Energy & Natural Resources
Increase in Electricity Prices Causes Debate
A major Swedish paper pulp producer has recently announced that it might move part of its production to South Africa due to high electricity prices in Sweden. Prices are expected to rise this year, as the allocation of emission allowances will be reduced during the second trading period. Sweden is now at a crucial point: the industry will either adapt to the emission allowance system or seek new ground.
Nord Stream Pipeline Raises Concerns
Nord Stream has recently notified the Baltic Sea governments of its plans to build a pipeline for the transmission of natural gas from Russia to Germany, including a service platform near the Swedish island of Gotland. All political parties represented in the Swedish Parliament seem to be against the pipeline. This update reviews the legal possibilities to stop the laying of the pipeline.
The Energy Agency has developed a method to evaluate the reasonableness of network tariffs: the performance assessment model. The model is based on a virtual reference network, which is considered to be run in an economical and technically efficient manner. The model has been heavily criticized ever since its introduction and is soon to be examined by a court for the first time.
Competition Trends in the Electricity Market
The Energy Market Inspectorate has delivered a report on price formation and competition in the electricity market. It suspects that the three companies dominating the market have limited the generation of electricity to influence electricity prices. Moreover, under governmental pressure, state-owned energy company Vattenfall has decided to offer a lowest price guarantee to its customers.
Changes to Electricity Certificate System
The government recently proposed changes to the current system of electricity certificates, which was implemented to increase the production of renewable electricity. This update provides an introduction to the electricity certificate system, reviews the principal changes proposed by the government and comments on a possible common Swedish/Norwegian market for electricity certificates.
Following a storm which caused the breakdown of large parts of the electricity network, the government announced the forthcoming implementation of rules aimed at achieving increased security of electricity supply. Among other things, the legislation will introduce a minimum requirement for secured electricity supply, as well as mandatory compensation for interrupted supply.
Environment
The EU Environmental Liability Directive was recently adopted into domestic law. The amendments and new provisions to put the directive into effect are incorporated into Chapter 10 of the Swedish Environmental Code. A new ordinance on serious environmental damage has also entered into force.
Extended Liability for Polluted Land
The Environmental Code states that persons who pursue or have pursued an activity or have taken a measure that causes damage to the environment shall be responsible for remediation to the extent deemed reasonable. In a surprising decision the Superior Environmental Court has found that the code included a requirement to investigate existing contamination during an ongoing activity.
The Swedish Environmental Protection Agency has issued the Regulations on Environmental Reports as a result of the adoption of the EU European Pollutant Release and Transfer Register Regulation. In light of the differences between the EU regulation and the Swedish regulations, there is a risk that a conflict between the rules might arise.
The Environmental Code sets forth general rules of consideration with which any person or entity pursuing an activity under the code must comply. Among these is the requirement to possess the necessary knowledge to protect human health and the environment. The Supreme Court has recently considered whether the knowledge requirement should be among the conditions set forth in environmental permits.
New Rules for Wind Power Plants
Under the environmental legislation, environmentally hazardous activities are categorized as A, B or C activities. In order to stimulate investment in wind power generation, the government has amended the C category to include wind farms with a combined power output of up to 25 megawatts. This update reviews the main differences between the relevant application and notification procedures.
Franchising
Overview
Including: Disclosure requirements; Statutory rules and legislation; Applicable antitrust law.
A cornerstone of many franchise systems is that the franchisor supplies products to the franchisee, which in turn sells them to its customers. Cases involving suppliers and wholesalers thus have a bearing on franchise systems and on the agreements governing such systems. An appellate court has decided a dispute between a supplier and a wholesaler that is of interest to franchisors which sell products to franchisees.
A personal guarantee must be clear
Most franchisors enter into agreements where the franchisee is a legal entity in which the owner cannot be personally liable for debts. Franchisors demand that franchisee owners sign a personal guarantee in which each owner personally guarantees that the franchisee will meet all of its obligations under the franchise agreement. An appellate court recently had the opportunity to scrutinise such personal guarantees.
There is no specific law in Sweden that governs the rights and obligations of parties to franchise agreements. Consequently, judges must make decisions based on the wording of individual franchise agreements and on general contract and commercial principles. A 2009 Supreme Court ruling regarding a distribution contract in which a judge considered laws and precedents outside Sweden could have a bearing on franchise disputes.
Since 2006 a disclosure law in Sweden has set out six points of which a franchisor must timely inform a potential franchisee, in writing, before the signing of a franchise agreement. The sixth point says that the franchisor must inform the franchisee that the franchise agreement contains an arbitration clause and point out the implications of such a clause.
The Law on the Duty of a Franchisor to Provide Information regulates the information that a franchisor or master franchisee must disclose, within a reasonable timeframe, before a potential franchisee or a sub-franchisee signs a franchise agreement. This update describes the provisions of the law and their implications for franchises.
Healthcare & Life Sciences
Pharmaceutical companies are strictly regulated in how marketing may be conducted online. Choosing a disease awareness campaign instead of traditional marketing of a product or treatment may be money well spent. The brand will be exposed and directly connected to the disease information, which is likely to yield a relative market share.
Information Technology
Overview
Including: IT Project; Internet Project; IT Services
Old Rule for a New Crime
An obsolete Swedish rule regarding criminal liability for planning a crime has been amended. As a result, keeping or handling a computer virus with the intent of committing a crime may itself constitute a criminal offence.
In this case a former employee copied the employer's customer database onto a computer disk and took it with him when his employment ended. The court ruled that this did not constitute trade espionage as the employee had been authorized to access the database as part of his work tasks.
Paying the Piper
A recent case decided that unauthorized links to MP3 files constituted a public performance of music and therefore were not subject to the usual copyright restrictions.
Insolvency & Restructuring
The Supreme Court recently found that Sweden has in accordance with the motive of the EU Insolvency Regulation. The court had to decide whether Sweden had jurisdiction over a recovery action involving a Norwegian defendant. It noted that a court in a member state where an insolvency proceeding has been opened also has jurisdiction over a recovery action against a defendant in another member state.
The Court of Appeal recently established that newly appointed directors were objectively liable for obligations which arose during a liability period. The court found that the directors had arranged an issue of new shares fully covering the company's equity shortage and had not acted negligently when the claim arose. The directors could therefore not be held personally liable and the claim was dismissed.
If a debtor is unable to pay its debts as they fall due, or will shortly become unable to do so, it may apply for company reorganisation, which grants undertakings with financial difficulties respite to take measures to improve their business and negotiate a judicial composition with creditors. The Wage Guarantee Act provides for a loan on a short-term basis that improves the debtor's possibilities to reorganise the business.
Supreme Court rules on set-off in bankruptcy
The Supreme Court recently clarified the interpretation of the rules on set-off in bankruptcy. The case concerned a creditor's right to offset a claim against the bankruptcy estate's claim of payment. The triable issue was whether the settlement agreement was to be considered as a substituted contract, meaning that the bankruptcy estate's claim had occurred after the date of bankruptcy.
Lodging proof of claim in bankruptcy
The Supreme Court recently clarified the interpretation of the rules on lodging proof of debt in bankruptcy. The case initially concerned a situation where a creditor that had received an interim dividend failed to lodge its claim in the proof-of-claim procedure. Due to specific circumstances, the creditor was still entitled to a dividend. However, in different circumstances, the outcome could have been different.
The Companies Act states that directors can be held personally liable for all debts that arise after the equity of a company has fallen below 50% of the registered share capital. In such circumstances the board of directors has a duty to act in order to avoid personal liability. In a recent case the Court of Appeal had to consider how a new board of directors in a company with insufficient capital should act.
Insurance & Reinsurance
About 600 insurance mediation companies are registered with the Financial Supervisory Authority (FSA), which believes that existing regulations have made it too easy to enter the insurance mediation market. The FSA is reviewing its regulations, but thinks that a review of statutory requirements is also necessary.
In a recent case the Supreme Court ruled that compensation awarded from industrial injuries insurance should be deducted from compensation awarded from traffic insurance for the same injury. The claimant had already received compensation from the industrial injuries insurance in excess of the amount claimed from the traffic insurance.
After an injury on the way to work, HU claimed and received compensation for permanent disability and disfigurement from her employer's industrial injuries insurance. She also claimed compensation for the same injury from the traffic insurance taken out by the tractor owner based on the fact that she was the victim of a traffic accident. The courts had to decide whether she was entitled to two lots of compensation.
The integrity of insurers' access to and handling of patients' case records has long been questioned. Changes in the Insurance Contract Act, which took effect recently, limit insurance companies' ability routinely to request health information in connection with applications for insurance and ensure that insurance companies may request consent to collect health information only when necessary.
Fraudulent insurance claims create serious and costly problems for European insurance companies. However, efforts by insurers to fight fraudulent claims occasionally go too far. This was the consensus in a judgment handed down by the Svea Court of Appeal, which held that statistical improbability of a car theft was not, per se, sufficient to rebut a claim under a motor policy.
Intellectual Property
In a landmark decision, the Supreme Court has held that the design of the Mini Maglite torch is sufficiently original and individual to enjoy copyright protection. In its reasoning the court thoroughly set forth the legal position and the threshold of originality required for copyright protection for applied art.
Sweden has now implemented the EU IP Rights Enforcement Directive. Some of the key changes relate to the right to information, publicity measures and corrective measures. Although the amendments have reinforced the penalties available within the IP field, there remain many unresolved issues to be determined by the courts.
Pirate Bay Crew Ordered to Walk the Plank
The Stockholm District Court has rendered its judgment in the case against the operators of the Pirate Bay, considered to be the world's most visited file-sharing website. In a major victory for the entertainment industry, the defendants were each sentenced to one year's imprisonment and ordered to pay Skr30 million in damages to the rights holders concerned.
Leisure & Tourism
The Data Inspection Board has granted a gaming company the right to collect and process personal data regarding players who cheat while playing online poker. It decided that Svenska Spel's need to control, report and ban cheaters was a legitimate interest that justifies an exemption from the Personal Data Act.
Litigation
In a recent decision, the Supreme Court considered whether it is possible for a party to obtain, by means of a court order compelling the production of written evidence, access to an expert opinion which its opponent did not want to use in the dispute. The Supreme Court decided that it will be highly unusual for an expert opinion to be found to constitute written evidence and thus be covered by the duty to produce.
Several changes to civil procedure in the general courts will take effect on November 1 2008. The changes concern preparatory proceedings in the courts of first instance, as well as main hearings. There will also be changes to proceedings in the courts of appeal.
In a recent investment arbitration between Petrobart and the Kyrgyz Republic, arbitrators dismissed Petrobart's claims on the basis that they lacked jurisdiction because there had been no 'investment'. The Supreme Court recently set aside the arbitrators' ruling, finding that the tribunal should have applied the doctrine of assertion when determining jurisdiction.
The Svea Court of Appeal had previously held that an arbitrator who shared offices with and was a consultant for a law firm that had a continuous relationship with the group of companies to which one of the parties belonged could not be regarded as biased. However, the Supreme Court has now set aside the original arbitral award and taken a strong line on arbitral impartiality.
The Svea Court of Appeal recently held that it would have been appropriate for an arbitrator to disclose certain facts, but that non-disclosure did not affect his impartiality. The court also held that it could not be concluded from the circumstances that the arbitrators had failed to consider certain facts upon which the challenging party relied during the arbitration. Thus, the award was upheld.
The Stockholm District Court and the Svea Court of Appeal have held that the right to bring an action against an award under Section 41 of the Arbitration Act applied to a determination of arbitration costs by the Arbitration Institute of the Stockholm Chamber of Commerce which was included in the award. The case is pending before the Supreme Court.
Media & Entertainment
The Court of Appeal has increased the amount of damages to be paid by the four men behind the Pirate Bay – who had previously been found guilty of contributory copyright infringement – but lowered their jail sentences from one year to four, eight and 10 months respectively. The fourth defendant was absent due to illness and will have his sentence reconsidered at a later date.
Anti-piracy case referred to ECJ
The Supreme Court has asked the European Court of Justice for a preliminary ruling in a case concerning an order to provide information pursuant to the Swedish Copyright Act. The request concerns whether the EU Data Retention Directive prevents an internet service provider from being ordered to reveal to a rights holder the identity of a subscriber suspected of infringing IP rights.
Since the EU IP Enforcement Directive was transposed into Sweden law through the implementation of the Copyright Act in 2009, three cases have arisen dealing with the act's key provision on the potential right for IP rights holders to obtain information regarding the origin of infringing goods and services and the networks through which they are distributed.
In a preliminary ruling the European Court of Justice (ECJ) held that EU law is not an obstacle for the prohibition in Swedish law of the promotion of gambling organised by private operators in other member states. However, the ECJ also held that the sanctions for the promotion of foreign operators cannot be stricter than those for the promotion national operators that are operating without a licence.
The Svea Court of Appeal recently reversed a district court's decision in the first Swedish case involving the EU IP Rights Enforcement Directive. The appeal court held that internet service provider ePhone should not be required to hand over user information requested by five book publishers.
Rights Holders Win First IPRED Case
On the day that the Swedish law on the EU Intellectual Property Rights Enforcement Directive entered into force, five publishers applied to receive information from ePhone - an internet service provider - regarding the identity of an individual behind an internet protocol address that they suspected was being used to distribute audiobooks illegally. A district court has found in the publishers' favour.
Projects & Procurement
Hospital Procurement on PPP Basis
Stockholm County Council has begun the procurement process for the development of the New Karolinska Solna University Hospital on a public-private partnership basis. The total investment is estimated at SKr14.1 billion (2007 nominal value), making this probably the largest building project under procurement in Sweden.
Securitisation & Structured Finance
The Swedish Securities Dealers Association has launched an industry code regulating structured investment products offered to the public, aiming to make it easier for investors to compare and evaluate the products on offer. The code applies to structured investment products which are offered to the public and where a prospectus requirement applies.
Shipping & Transport
The government has recently enacted a law setting out new provisions on the employment of onboard armed security personnel, which is set to take effect in July 2013. An unofficial English translation of the act will be published later this year by the Maritime Law Institute.
The increased use of armed guards and the expanding market in the number of firms offering armed maritime security services impelled the International Maritime Organisation to issue guidance on the use of privately contracted armed security personnel onboard ships. Sweden has not yet adopted regulations on the employment of security guards; however, Parliament is expected to enact a new law in the near future.
Several amendments to the Swedish maritime legislation recently entered into force. The amendments concern the Maritime Code, the Vessel Safety Act and the Vessels Safety Ordinance. The provisions state, among other things, that ship owners and operators of Swedish ships with a gross tonnage of at least 300 are liable to maintain insurance or other financial security for the carrier's performance of obligations.
In a recent judgment the Svea Court of Appeal reaffirmed the exclusivity of the Uniform Rules Concerning the Contract of International Carriage of Goods by Rail. While the decision may be legally sound, it is perhaps more questionable from an environmental perspective. The judgment has been appealed to the Supreme Court. However, it is doubtful whether the appeal will succeed.
The Court of Appeal has recently considered whether a time limitation included in the General Conditions of the Nordic Association of Freight Forwarders should be considered a rule corresponding to the limitation of liability. The court upheld the previously expressed view that it should not be possible to rely on a limitation clause in a contract if damage is caused through gross negligence or wilful misconduct.
In Sweden, freight forwarders are subject to no special mandatory regulations and, in principle, the parties involved are free to agree whatever terms they wish, provided that they do not contravene the law. Despite this, few freight forwarding agreements are made between parties; rather, the General Conditions of the Nordic Association of Freight Forwarders are widely used within the Nordic countries. This update considers the impact of the ongoing review of these conditions.
Telecommunications
Overview
Including: Broadcasting; Telecommunications.
Swedish Utility Easements Act Amended
Following recent amendments, the Utility Easements Act now clearly stipulates that it is possible to grant easements not only for wires and cables, but also for other devices that form part of an electronic communications network. It is also now possible for a utility easement decision to stipulate that the holder may allow a third party to install and use an additional wire or cable.
New Players Enter Telecoms Market
The Swedish telecommunications agency recently invited companies to participate in a 'beauty contest' for fixed wireless access licences. The allocation will include 42 county-based licences and one nationwide licence. The agency has also granted a Global System for Mobile Communications licence to the company SweFour AB.
Interconnection Fees Investigated
Interconnection fees have a huge impact on competition and therefore the functioning of the mobile communication market, since they make up a significant part of the price that the end customer must pay to make a call. For this reason the Swedish National Post and Telecom Agency keeps a close eye on fees charged by operators.
On January 10 2002 the Swedish National Post and Telecom Agency invited interested companies to apply for the fourth nationwide Global system for Communication (GSM) licence. The agency plans to award the licence by June 30 2002.
According to the Swedish National Post and Telecom's latest report on the development of the UMTS networks, the three operators have so far fulfilled their commitments under the agreements made when the licences were granted.
Fixed Terrestrial Radio Access
One of the four companies that was granted a licence for fixed terrestrial radio access, Telenordia Access, has decided to return the licence. It reached this decision after discovering that there were uncertainties attached to the future distribution of certain frequencies and the price of access to Telia's copper network.
