Cristina Bergner of ADVOKATFIRMAN NOVA AB takes part in Negotiating Effective Contracts & Dealing with Disputes

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QUESTION ONE – What is your best practice approach when advising General Counsel, to ensure dispute resolution clauses are to their real advantage and do not obstruct enforcement proceedings?

When choosing a dispute resolution method in cross-border disputes, one should consider what parties are involved, what problems may arise and what actions may be needed. Generally speaking, however, arbitration is preferred when both countries are parties to the New York Convention or LCIA Arbitration in London.

QUESTION TWO – Are there any particular rules around funding litigation in your jurisdiction that General Counsel should be aware of?

There are no rules around litigation funding in Sweden and there is consequently no prohibition against it. However, third-party funding might cause a dilemma for Swedish lawyers in regard to loyalty issues etc. Additionally, Swedish lawyers cannot take a stake in the outcome/percentage of the amount in dispute, generally, according to the ethical rules of the Swedish Bar Association.

QUESTION THREE – What techniques are typically used by international counterparties in your experience when attempting to gain the initiative during a dispute? How important are civil procedural rules?

Civil security measures, such as freezing assets, are possible according to Swedish law, but we do not find it very commonly used in commercial litigation. The party claiming security measures in civil litigation has to deposit adequate security to cover potential damages for the counterparty because of the measures. Consequently, it is a costly action.
Depending on the amount in play, the costs can, of course, be worthwhile. In infringement cases, techniques such as cease and desist letters in combination with injunctive measures are common and often used.

TOP TIPS FOR: Successful negotiations

DOS

Do thorough financial research into the counterparty to find out if there are actual assets to collect.

Do research whether there is an insurance company on the counterparty’s side that could be involved as a cost bearer.

Do a list of all the negative effects of a trial and present the content of the list to the counterparty to show what the alternative to settlement is.

If possible, offer something that is valuable to the counterparty, without costs for the client.

Write a crystal clear settlement agreement so that there is no question about what should be done. If you are representing the claimant, add a clause in the settlement agreement stating that a larger amount than the settlement amount, preferably the entire amount in dispute, has to be paid if the settlement amount in full is not paid on time.

DON’TS

Never offend anyone. You should always be firm but still polite.

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