The Draft Common Frame of Reference in the Swedish Supreme Court

The Study Group on a European Civil Code which prepared the Principles, Definitions and Model Rules of European Private Law (more commonly known as the Draft Common Frame of Reference or DCFR) was fortunate to have among its members both a Swedish Supreme Court Judge (Torgny Håstad) and a professor who has since become a Swedish Supreme Court Judge (Johnny Herre). It is perhaps therefore not surprising that the Swedish Supreme Court has shown an awareness of the usefulness of the DCFR.

A recent article on the website of the International Law Office  mentions that the Swedish Supreme Court has referred to the DCFR in support of its rulings in eight cases since it was first published in 2009. There are probably other cases where it has been influential, although not cited in the final decision.

This extensive use of the DCFR has apparently led to a vigorous debate in Sweden as to the status of the DCFR in Swedish law. The article concludes, as might be expected, that the DCFR cannot be regarded as a source of law. It is soft law. However, it is clear from the way the Court is using it that practitioners cannot afford to disregard it. In the words of the author of the article (Bo Thomaeus)

it is not naive to argue that the DCFR should rank if not on the same level, then at least just below the level of accepted sources. The Supreme Court rulings of the past five years indicate that law practitioners should familiarise themselves with the DCFR and a comprehensive knowledge of it might prove valuable in any commercial litigation or arbitration under Swedish law.

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