Hostname: page-component-586b7cd67f-gb8f7 Total loading time: 0 Render date: 2024-11-29T09:59:15.421Z Has data issue: false hasContentIssue false
  • English
  • Français

The Influence of the Hague Conventions on the Development of Swedish Family Conflicts Law

Published online by Cambridge University Press:  21 May 2009

Maarit Jänterä-Jareborg
Get access

Extract

In Sweden, private international law started to develop as an area of law in the late nineteenth century. The Hague Conference on Private International Law played a decisive role in this development. As late as in the 1960s, most Swedish private international law legislation, with the exception of rules originating in the inter-Nordic co-operation in this field, was based on Hague Conventions ratified by Sweden.

Type
Articles
Information
Netherlands International Law Review , Volume 40 , Issue 1 , May 1993 , pp. 49 - 65
Copyright
Copyright © T.M.C. Asser Press 1993

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. The only major exception containing generally applicable rules is the Act (1937:81) on International Legal Relations Concerning Estates, which is still in force. This Act was passed only after the Hague Conference's failure in this field. See NJA (Nytt Juridiskt Arkiv) II 1938, pp. 207–208.Google Scholar

2. In Swedish law, it is usual to characterize the law of succession as a part of family law in a wider sense. See Â. Malmström and Agell, A., Civilrätt (1990) p. 305. I follow this characterization in my Paper.Google Scholar

3. Pâlsson, L., ‘Rules, Problems and Trends in Family Conflict of Laws — Especially in Sweden’, 199 Hague Recueil (1986–IV) p. 332.Google Scholar

4. Reuterskiöld, C.A., Handbok i svensk internationell privaträtt, 1st edn. (1907) p. IV.Google Scholar See also Eek, H., Lagkonflikter i tvistemal I (1978) pp. 30–31.Google Scholar

5. This Act, which is still in force, has been amended a number of times. I would like to characterize its present condition as a mixture of modern (marriage) and old-fashioned (guardianship) provisions.

6. See Bogdan, M., ‘Nationality as a Connecting Factor in Swedish Private International Law’, Liber memoralis François Laurent 1810–1887 (1989) p. 681.Google Scholar

7. In the case of the 1905 Convention, the Swedish legislator refrained from giving the implementary Act of 1912 universal applicability. This cautiousness seems to have been unnecessary. A Supreme Court decision of 1909, NJA 1909 s. 439, which concerned applicable law concerning matrimonial property relations, was already based on the principles underlying the 1905 Convention. These principles were given general applicability in case law following the enactment. See Jänterä-Jareborg, M, Partsautonomi och efterlevande makes rättsställning: Eninternationellt-privaträttslig studie (1989) p. 275 et seq.Google Scholar

8. Pâlsson, , loc. cit. n. 3, p. 332.Google Scholar

9. See Philip, A., ‘The Scandinavian Conventions on Private International Law’, 96 Hague Recueil (1959–1) p. 245 et seq. These conventions are still in force or have been replaced by new corresponding 8 provisions.Google Scholar

10. My point can be illustrated by the Finnish development. In Finland, the enactment of generally applicable family conflicts of law legislation coincided with the initiation of inter-Nordic co-operation. This did not prevent Finland from choosing the Swedish model, i.e., the application of the domicile principle was limited to the specially regulated inter-Nordic relations. Otherwise, solutions originating in the above-mentioned Hague Conventions were adopted. See Jänterä-Jareborg, op. cit. n. 7, p. 353.Google Scholar

11. See NJA II 1933 pp. 713–715Google Scholar, and NJA II 1934 p. 423.Google Scholar

12. See SOU 1983:29 p. 44 et seq., and SOU 1987:18 p. 51.

13. According to statistics, the number of foreign citizens living in Sweden is approximately half a million inhabitants (i.e., six per cent of the total population). Altogether about one million inhabitants can be classified as immigrants in a wider sense. This group also includes naturalized immigrants born abroad and persons born in Sweden with at least one parent born abroad. See Pâlsson, , loc. cit. n. 3, p. 335 et seq., and Prop. (Government Bill) 1989/90:87 pp. 8–9.Google Scholar

14. See Jägerskiöld, S., ‘Medborgarskapet som anknyMingsfaktumi intemationell privaträtt’, Svensk Jurisuidning (1955) pp. 546–548.Google Scholar

15. See Schmidt, F., ‘Nationality and Domicile in Swedish Private Intanational Law’, 4 ILQ (1951) p. 52Google Scholar, Bogdan, , loc. cit. n. 6, pp. 684–685.Google Scholar

16. See, e.g., Supreme Court decisions NJA 1970 s. 420 and NJA 1982 C 25. See Jäntertä-Jareborg, , op. cit. n. 7, p. 275 et seq.Google Scholar

17. Act (1990:272) on Certain International Questions Concerning Matrimonial Property Relations.

18. See, e.g., Prop. 1971:113 p. 26 et seq., and SOU 1987:18 p. 52 et seq.

19. SOU 1987:18 p. 53.Google Scholar

20. The most striking example of a similar factual dependence is the Act (1971:796) on International Legal Relations Concerning Adoption which, to a large extent, was drafted in accordance with the 1965 Convention on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoptions. This solution was chosen in order to enable Sweden later on to enter the Convention. See Prop. 1971:113 pp. 8 et seq. and 26 et seq. Plans to accede to this Convention have by now been given up, not least due to the disinterest shown by other States to accede to the Convention. See SOU 1989:100 p. 197 et seq.Google Scholar

21. See Borum, O.A., ‘The Scandinavian Countries and the Hague Conventions on Private International Law 1951–1964’, 11 Scandinavian Studies in Law (1967) p. 39 et seq.Google Scholar

22. See Prop. 1965:139 p. 10 et seq.

23. A positive attitude seems to have been taken in earlier law. Thus, in NJA 1927 s. 130, a case decided by the Supreme Court, a decision by a Hungarian court enjoining a husband to pay maintenance to his wife and children after separation was, without further investigation, accepted by the Supreme Court as a ground for the Swedish judgment in the case.

24. The need for such provisions were at that time under investigation in Sweden. This investigation was to follow the work at the Hague Conference concerning recognition and enforcement of foreign judgments in civil and commercial matters. Prop. 1965:139 p. 15.

25. See Agell, A., Underhâll till barn och make, 3rd edn. (1986) p. 98 et seq., and Prop. 1975/76:98 p. 9 et seq.Google Scholar

26. These Swedish solutions must be seen against the background of the social conditions in the form of a developed system of social security and the world's highest participation of women in the labour market. See Pâlsson, , loc. cit. n. 3, p. 369 et seq., and also Agell, op. cit. n. 25, p. 16 et seq.Google Scholar

27. Pâlsson, L, Svensk rättspraxis i internationell familje- och arvsrän (1986) pp. 185–186Google Scholar; Bogdan, M., Familjerättsligt underhâll i svensk internationell privaträtt’, Svensk Juristtidning (1978) p. 184 fn. 66.Google Scholar

28. Prop. 1965:139 p. 18.

29. It must be mentioned that Swedish courts in general, and especially the Supreme Court, have been very reluctant to make any use of the ordre public reservation in private international law cases. See Bogdan, M., Svensk internationell privat- och processrätt, 4th edn. (1992) pp. 73–74Google Scholar; Pâlsson, op. cit. n. 27, pp. 42–44.Google Scholar

30. Pâlsson, , op. cit. n. 27, p. 181.Google Scholar

31. Borum, , loc. cit. n. 21, p. 46.Google Scholar

32. See SOU 1987:18 pp. 102–103.Google Scholar

33. Prop, . 1965:139 p. 8.Google Scholar

34. See Prop, . 1973:158 p. 69. This Government Bill uses this argument as a reason for acceding to the 1970 Convention on the Recognition of Divorces and Legal Separations.Google Scholar

35. A new complication since Sweden became a party to the 1980 Child Abduction Convention is that this provision as such also covers cases where the child has been wrongfully removed to or retained in Sweden.

36. Prop, . 1973: 158 p. 110.Google Scholar

37. See Pâlsson, , op. cit. n. 27, p. 158 et seq.Google Scholar

38. See, e.g., NJA 1974 s.7Google Scholar; SOU 1987:18 p. 103.Google Scholar

39. NJA 1992 s. 93.Google Scholar

40. See Supreme Court decisions NJA 1970 s. 420 and NJA 1982 C 25. See also Bogdan, , loc. cit. n. 27, p. 168.Google Scholar

41. SOU 1987:18 pp. 103–104.Google Scholar

42. Alabama, the District of Columbia and Mississippi are excluded. See SFS 1991:110.

43. See Prop. 1987/88:106.

44. See SOU 1987:18 pp. 243 et seq. and 361–362.Google Scholar

45. On the effect of the Lugano Convention on Swedish private international law in the field of maintenance, see Jänterä-Jareborg, M., ‘Har föräldrarna en livslâng underhâllsskyldighet i intemationella förhâllanden?’, Svensk Juristtidning (1993).Google Scholar

46. SOU 1987:18 pp. 241–242 and 362.Google Scholar

47. SOU 1987:18 pp. 289 et seq. and 363 et seq.Google Scholar