I Market overview

Despite its breakthrough at the global level, third party funding is still a relatively new and unfamiliar phenomenon in Sweden. Third party funding has not been subject to any extensive discussions among legal commentators and has only been referred to on a few occasions in articles written by Swedish lawyers.2 In part, this is due to the fact that there is currently no domestic market in Sweden for third party funding. The instances in which third party funding currently occurs in Sweden are predominantly concentrated to international arbitration proceedings seated in Sweden.3

Rather, the prevalent type of litigation investment4 that has been established in Sweden has mainly related to sales of claims for damages. We have seen many examples of companies established for the sole purpose of acquiring smaller claims, typically damages claims against company directors. Lately, this trend has also evolved into larger damages claims, including claims in cartel cases. Formerly, this was primarily a trend in other Nordic countries, such as Finland, but there is reason to believe that we will see more of this phenomenon on the Swedish market in the future.5

In our view, investors that acquire damages claims do not fall within the scope of the type of litigation investment that has come to be referred to as third party funding.6 However, the case law that has evolved in respect of acquisitions of damages claims is, nonetheless, of interest when assessing issues commonly seen in connection with arbitrations involving third party funding, such as liability for legal fees and litigation costs. For this reason, in Section V, we will discuss the existing case law in relation to liability for legal fees and litigation costs in conjunction with acquisitions of damages claims.

As noted above, the instances in which third party funding is currently used in Sweden are probably limited to international arbitration proceedings in which the seat of arbitration is located in Sweden. There are currently no statistics available as regards the number of arbitration proceedings that have been financed via third party funding in Sweden. However, the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) dealt with 200 arbitration proceedings in 2017.7 Since third party funding has grown on the international market, it is undoubtedly the case that at least some of these proceedings have been funded via third party funding. The authors of this chapter know for certain that three major arbitration proceedings held in Sweden under the SCC rules were initiated by way of funding from a third party funder between 2014 and 2017.8

II Legal and regulatory framework

There is no legislation or other mandatory rules in Sweden barring the use of third party funding. Furthermore, given the absence of a domestic third party funding market, no regulatory need has occurred, either by way of legislation or self-regulation. Given the perceived absence of a domestic market, it is unlikely that either mandatory rules or self-regulation will be introduced in Sweden in the near future.

In terms of the approach taken by the Swedish courts to third party funding, there is currently no case law relating to third party funding from which we are able to deduce the views of the courts. However, case law does exist in relation to issues that often arise in connection with third party funding, such as conflicts of interest. In relation to these issues, Swedish courts have been inclined to draw inspiration from international guidelines, such as guidelines from the International Bar Association (IBA).9 Arguably, Swedish courts will take a similar approach with respect to third party funding as well (i.e., they will be guided by international guidelines in these areas). This issue is discussed in more detail in Section IV.

As noted above, another interesting development in Swedish law that could have repercussions for third party funding is that Swedish courts have shown a tendency to impose liability for legal costs in relation to the use of what are referred to as 'claims vehicles'. The courts have in several cases held shareholders personally liable for paying legal fees and litigation costs. The evolved body of case law entails that such liability may come in effect where the third party has acted as the effective beneficiary in the dispute, and the claim has been transferred to a company in a poor financial condition for the purpose of limiting the financial consequences of an adverse costs decision. In taking this approach, the Swedish courts seek to counteract arrangements whereby a creditor transfers a claim to a party that does not have the financial resources to discharge the liability for legal fees and litigation costs in the event the claim is unsuccessful, while the creditor retains a financial interest in the outcome of the dispute if the claim is successful. Although these cases relate to transfers of claims and thus do not apply directly to what is herein referred to as third party funding, the underlying problem is the same, or, in any event, related. Therefore, Section V explores liability for legal fees and litigation costs in relation to third party funding in more detail.

The rules currently in effect with the closest relation to the type of investment agreement entered into between a company and a third party funder are the Swedish Bar Association's rules concerning risk agreements. A risk agreement is an agreement under which the lawyer's fees are based fully or partially on the outcome of the dispute.10 Thus, similarly to third party funding, the lawyer has a direct financial interest in the outcome of the dispute. Of course, a notable difference between the arrangements is that a lawyer performs work on the client's behalf, while a third party funder finances the legal action in return for a proportion of the potential outcome. However, the principle behind both phenomena is the same: a person or entity independent of the client invests in the dispute to obtain a positive outcome. This merits a closer look at the rules and views on risk agreements under the Bar Association's rules.

In Sweden, financial interests of lawyers in the disputes in which they act are governed by the Bar Association's Code of Professional Conduct (CPC). An essential principle under the CPC is that fees charged by lawyers must be reasonable.11 The following factors typically affect the assessment on what constitutes a reasonable fee:

  1. what has been agreed with the client;
  2. the scope and nature of the work performed;
  3. the complexity and importance of the assignment;
  4. the lawyer's expertise;
  5. the result of the work; and
  6. other factors of equivalent nature.12

With the exception of a few narrow grounds laid out in the CPC, lawyers are prohibited from entering into risk agreements.13 The existing exceptions apply primarily to situations where the client is financially unable to bring the legal action (access to justice) or where the arrangement constitutes part of a larger international dispute based on a contingency fee agreement. However, the Bar Association's Disciplinary Committee has applied these exemptions very restrictively. In one important case, the Disciplinary Committee reprimanded a lawyer for charging a risk-based fee.14 This was despite the fact that the client proposed the arrangement and the client explained that the action would not be financially viable to bring unless the lawyer accepted the risk agreement. The client had contacted the lawyer to investigate the prospects of recovering unpaid royalties. The parties agreed that the lawyer would receive 25 per cent of the royalties received in exchange for the lawyer bearing all of the costs incurred from pursuing the legal action. The majority of the Disciplinary Committee held that the arrangement was not permissible. As far as we are aware, as of the date of this article, the Disciplinary Committee has given no rulings permitting risk agreements. In light of that, the prevailing principle concerning risk agreements for lawyers can best be described as a general prohibition.

An alternative to risk agreements, however, are 'conditional fee arrangements'. Arrangements of this kind allow for outcome-based increases or reductions of the lawyer's fee that come into effect once the dispute is concluded. As regards conditional fees, the situation is not as clear-cut under the CPC. There is no case law from the Bar Association or indeed the courts to provide guidance on this type of arrangement. However, the CPC does state that an agreement under which the lawyer assumes a financial risk in relation to the outcome of the case does not necessarily mean that the lawyer's financial self-interest will be disproportionate or could affect the way in which the lawyer performs his or her work on the case.15

Consequently, in our assessment, the CPC appears to permit conditional fee arrangements where the risk and the reward are reasonably balanced while restricting potential fee increases if the lawyer's financial interest is disporportionate in relation to the agreed fee estimate or otherwise – based on an ex aequo et bono assessment – risks adversely affecting the lawyer's performance.

In summary, third party funding remains an unregulated practice in Sweden. However, it is clear that a restrictive view applies in Sweden in relation to lawyers involving financial interests when exercising their professional role. Conversely, third party funders who engage Swedish legal counsel must come to terms with the fact that Swedish lawyers, as a rule, charge fees based on traditional fee models, possibly with the exception of conditional fees. This, in turn, may affect the construction of the funding arrangement, as some funders require the funded party's legal counsel to impart risk through the use of outcome-based fee arrangements.16 Notwithstanding any general scepticism, however, it is, in our view, unlikely that the Bar Association's stringent rules concerning lawyers taking financial risks reflects an impending approach seeking to impose similar restrictions in relation to third party funding agreements. As stated above, we believe that third party funding will continue to be permitted in Sweden and continue to be unregulated.

III Structuring the Agreement

In light of the fact that there is no domestic third party funding market in Sweden, no common practice has developed in terms of the typical structure of an agreement between the claimant and the investor. As mentioned above, litigation investment on the Swedish market has generally related to transfers of damages claims. The transfer agreement is diametrically different from an investment agreement. This type of transfer is also covered by legal provisions setting out how the acquirer of the damages claim can take over the action.17 However, this type of issue does not arise in the case of third party funding, since third party funding does not generally involve any transfer of the damages claim.

However, a number of other interesting issues arise in the case of third party funding, such as in relation to exclusivity, settlements and confidentiality. All these issues cannot be addressed within the scope of this chapter. Instead, we will focus on problems that can arise from the fact that, in principle, a lawyer can represent two parties where third party funding is used (i.e., both the claimant and the investor), and how this situation should be dealt with.

As regards the relationship between the claimant and the investor, initially the lawyer should make it very clear that the claimant is the client, which should also be stated in the investment agreement between the claimant and the investor. Even though this relationship is evident, situations could arise that result in the lawyer facing serious ethical challenges. The following example illustrates this. Generally, investment agreements provide for a right for the investor to terminate the agreement if the prospects of success in the dispute diminish. If a lawyer perceives that because of some factor or other the legal action has changed to diminish the prospects of success, the lawyer undoubtedly has a duty under the CPC to inform the client (i.e., the claimant).18 A lawyer's primary duty is a fiduciary duty to his or her client.19 However, the question is whether the lawyer has an equivalent duty to the investor (i.e., whether the investor should also be informed of the poorer prospects of success). This question is further complicated by the fact that under the agreement the claimant is generally always under a contractual obligation to inform the investor of such circumstances. In all likelihood, the correct solution for the lawyer in this situation is to inform the claimant of the new circumstances and then remind the claimant of its contractual obligation to inform the investor.20

The situation described above is rendered even more cumbersome if the investor pays the lawyer's fees (which is typically the case) and the lawyer has agreed to regularly update the investor on the dispute (which is also typically the case). In this situation, the lawyer could owe a fiduciary duty to the investor, meaning that both the claimant and the investor are the lawyer's clients. If a claimant in this situation tells the lawyer that under no circumstances should the investor be informed of the new circumstances that have diminished the prospects of a successful outcome in the dispute, the lawyer will probably be placed in an impossible situation. In such case, the lawyer will likely have no choice other than to decline acting for the client in the dispute. This means that, where possible, the lawyer should explain his or her role carefully to both the claimant and the investor at the outset of the engagement. If the lawyer assumes a role that could trigger a fiduciary duty to the investor, the lawyer should explain clearly to the claimant what effect this has on the lawyer's role. The claimant must also comply in full with the provisions of the investment agreement to avoid placing the lawyer in an impossible situation where he or she may ultimately be compelled to decline acting for the claimant in the dispute. The example given is only one of many examples of issues that need to be taken into account and considered in relation to third party funding. Accordingly, a great deal of importance should be placed on how the investment agreement is structured to ensure that the agreement also works for all of the parties involved.

IV Disclosure

Another pressing issue relating to the procedural impact of third party funding is the extent to which a claimant that receives third party funding is under an obligation to disclose this to the arbitral tribunal or the other party to the dispute. This question is strongly linked to the requirement for an impartial and independent arbitral tribunal, which constitutes a fundamental principle in both domestic and international arbitration proceedings. Neither Swedish legislation (i.e., the Swedish Arbitration Act (SAA)) nor the rules of any arbitration institution (i.e., the SCC's rules) impose any obligations to disclose the existence of funding sua sponte. Furthermore, there are no such rules relating to litigation proceedings. Thus, as the law now stands, the parties in arbitration proceedings are not under any obligation to inform the arbitral tribunal that they are being funded by an investor.

With respect to conflicts of interest, the general rule under Section 8 of the SAA is that an arbitrator must be impartial and that, upon application by a party, an arbitrator can be discharged if circumstances exist that could give reason to question the arbitrator's impartiality. The assessment whether an arbitrator is impartial must be objective.21

The third party funder's impact on the arbitrators' impartiality under Section 8 of the SAA has not been addressed by Swedish courts. However, internationally, these issues have been subject to extensive doctrinal developments as well as public discourse. The latter has given rise to a body of guiding principles that are seen, inter alia, in the provisions of the IBA Guidelines and also the general recommendations laid out in the recently published Report of the ICCA-Queen Mary Task Force on Third-party Funding in International Arbitration. This raises the issue of the extent to which Swedish courts are inclined to resort to international guidelines and other sources of 'soft-law nature' for deciding on issues pertaining to international arbitration in general and third party funding in particular.

In this respect, the Supreme Court has stated that, based on the rule similarity and the international elements that are often present, when assessing impartiality, not only should the provisions of the SAA be observed, but also international rules and guidelines.22 In our experience, it is rarely the case that parties agree on a strict application of, for instance, the IBA's Guidelines on Conflict of Interest. This notwithstanding, in one Supreme Court case, the court based a disqualification of an arbitrator partially on provisions laid out therein.23 A similar line of argument with reference to the IBA Guidelines on Conflict of Interest was also applied in a subsequent Supreme Court case.24 Consequently, applicable case law supports the notion that Swedish courts generally have a positive attitude to deriving guidance from international rules when determining matters – both domestic and international – relating to, among other things, conflicts of interest. This has also been confirmed by leading authorities in the area, such as the former President of the Supreme Court, Stefan Lindskog.25

In light of the above, it is noteworthy that the IBA Guidelines on Conflict of Interest include the following provision:

If one of the parties is a legal entity, any legal or physical person having a controlling influence on the legal entity, or a direct economic interest in, or a duty to indemnify a party for, the award to be rendered in the arbitration, may be considered to bear the identity of such party.26

This means that, in certain situations, third party funders can be deemed to be comparable to a party to the proceedings whose claim the investor has funded. The explanatory section further states that a third party funder 'may have a direct economic interest in the award, and as such may be considered to be the equivalent of the party'.27

Consequently, the IBA Guidelines advocate for a case-by-case assessment as to whether a third party funder 'may be considered to bear the identity' of the funded party. As far as the commentary is concerned, since a third party funder is generally likely to fall within the scope of the provision, it will 'bear the identity' of the claimant.

According to Article 7(a) of the IBA Guidelines of Conflict of Interest, the parties are required to disclose any relationship with the arbitrator that may trigger impartiality concerns. In accordance with what has been stated above, the parties' duty to disclose 'any' relationship between the arbitrator and the party extends to relationships with persons or entities with a direct economic interest in the award, such as an external funder, or any individual or entity committed to indemnify a party for an adverse costs decision or award.28 The fact that the rules of the IBA Guidelines are generally not binding upon the parties means that it is within their own discretion to decide whether or not to disclose the existence of funding. It has been argued in this respect that the arbitrators cannot be deemed conflicted if they are not aware of the circumstances triggering the conflict. However, under Swedish law, the presence of any conflict of interest is determined based on an objective assessment. Arguably, this means that a Swedish court will not take into consideration whether the arbitrator de facto has been influenced when deciding on the existence of conflicts with disqualifying potential.

Accordingly, in light of the above, should a claimant and a third party funder fail to disclose the existence of funding, they do so accepting the inherent risk that this will be discovered later on during the proceedings. This, in turn, could induce a conflict of interest under the SAA, which could lead to one or more arbitrators being discharged. Moreover, if the conflicting realities come to light after the conclusion of the arbitration proceedings, the conflict of interest could constitute grounds for setting aside the arbitral award. However, in this respect, it should be noted that challenges to arbitral awards are subject to a three-month limitation period under Swedish law. If a challenge is not brought within this period, the ground for challenge will be procedurally barred. This is the case even in situations where the moving party became aware of the ground for challenge after the expiry of the limitation period.29

A typical case where it can be disclosed that a third party funder is funding a dispute is where the opposing party suspects that this is the case and requests that the arbitral tribunal order the opposing party to disclose whether it is being funded by a third party. If the arbitral tribunal grants this request, the opposing party will have no choice other than to disclose the funding. If it turns out that there is a conflict of interest, this could create problems for both the parties and the arbitral tribunal. As stated above, it could mean that an arbitrator is required to resign from his or her appointment at a late stage in the proceedings. It could also constitute grounds for a challenge action against the arbitral award pursuant to Section 33 of the SAA. Consequently, the issue of whether or not the third party funding should be disclosed should be carefully considered when using such funding.

Regardless of the above, and specifically the fact that currently no sua sponte obligation to disclose third party funding seems to exist, neither for the funded party nor for the third party funder, we are yet to experience how courts and arbitral tribunals in practice will handle the correlation between disclosure and third party funding. In addition to the principles inherent in the IBA Guidelines on Conflicts of Interest, support for an open-ended view towards imposing disclosure obligations can be found in the ICCA–Queen Mary Task Force Report. For the purpose of mitigating the risk of conflicts of interest, the report suggests that parties 'should, on their own initiative, disclose the existence of a third-party funding arrangement and the identity of the funder to the arbitrators'.30 This should be done as soon as possible after the funding has taken place.31 The report further advocates for a fairly generous view with respect to the arbitral tribunal's mandate to order disclosure of whether a party is funded, as well as the identity of the funder.32 As noted above, transnational soft law sources have influenced the Swedish Supreme Court's interpretation of the provisions relating to conflicts of interest in the Swedish Arbitration Act on numerous occasions. If applied in a third party funding context, this tendency may predict a shift towards a stricter view on disclosure duties, at least with respect to the existence of funding and the identity of the funder.

V Costs

As explained in Section II, a claimant that transfers a claim to a party that has no financial resources to pay the defendant's legal fees and litigation costs in the event the claim is unsuccessful could later be ordered to pay the defendant's legal fees and litigation costs. However, this requires that the claimant retains a financial interest in the outcome of the dispute insofar as the outcome is positive. The question is whether this can also be applied to third party funding and, if so, whether this means that a third party funder can later be ordered to pay the defendant's legal fees and litigation costs if the claimant does not have the financial resources to do so.

Under Swedish law, the assumption is that the party that loses the case must compensate the opposing party for its legal fees and litigation costs.33 The problem described above arises when the claimant is in such a poor financial condition that it is unable to pay the defendant's legal fees and litigation costs and, furthermore, has not agreed that the third party funder will cover the opposing party's legal fees and litigation costs.

In this respect, it should be noted at the outset that Swedish courts have held that a party in poor financial condition is entitled to bring a legal action.34 However, the Supreme Court has held that, in a situation where the claimant is unable to pay the defendant's legal fees and litigation costs, in exceptional cases there may be grounds for imposing liability for paying these costs on a third party with a financial interest in the outcome of the dispute.35 According to case law, this probably requires the third party to be the effective beneficiary in the dispute and the claim to have been transferred to an individual or company in poor financial condition for the purpose of limiting the adverse financial consequences of a negative outcome in the dispute.

In light of the above and based on current case law, it is probably difficult to impose liability for legal fees and litigation costs on a third party funder, since third party funding does not generally involve the claim being transferred to an individual or company in poor financial condition. The situation is reminiscent of that where an individual creditor in bankruptcy invests in the bankruptcy estate's action against a debtor in respect of a claim in favour of the bankruptcy estate. In such a case, the creditor in bankruptcy is the effective beneficiary in terms of the financial outcome of the dispute and probably also exercises a certain amount of influence over the action. Under Swedish law, in this situation the creditor in bankruptcy is unlikely to be ordered to pay the opposing party's legal fees and litigation costs in the event the action is unsuccessful.36

In light of this, it is unlikely that a third party funder will be held liable for paying legal fees and litigation costs based on current case law. However, this does not prevent the Supreme Court from altering this position when it has the opportunity to assess a situation relating to liability for legal fees and litigation costs where a third party funder has been involved.

VI The Year in Review

In the past year, there have been no considerable changes in the Swedish market that bear relevance as to third party funding. However, we have seen an increase in awareness and interest among Swedish lawyers towards third party funding and its potential benefits. While third party funding was previously regarded fairly negatively, we have, during the course of the past few years, detected a more positive attitude towards third party funding.

VII Conclusions and outlook

In summary, third party funding is a phenomenon that is relatively new and unfamiliar in Sweden. The situations in which third party funding is used in Sweden are probably limited to international arbitration proceedings in which the seat of arbitration is located in Sweden. Furthermore, since third party funding is relatively new in Sweden, there is no legislation governing or barring the use of third party funding. In our view, this will remain the case in the future. If third party funding issues arise in the Swedish courts, it is reasonable to assume that the courts will be guided primarily by international guidelines and other 'soft law' sources.

As for the future, we predict great potential for the continued development of third party funding in Sweden. The SCC is one of the major arbitral institutions and will thus continue to attract many arbitration cases. Moreover, the SCC is noted as being one of the major institutions when it comes to larger disputes, which typically are of greatest interest for third party funders. Therefore, it is likely that the third party funding market will increase in Sweden in the coming years.


Footnotes

1 Johan Sidklev is a partner and Carl Persson is a senior associate at Roschier Advokatbyrå AB. Bruno Gustafsson, associate at Roschier in Stockholm, has conducted research, revised and provided updates to the current version of this article.

2 See, for example, Peter Mühlenbock, Tvistinvestering – särskilt om vissa kostnadsfrågor (Litigation investment – especially regarding certain issues relating to costs), Juridisk Publikation, 1/2016 and Christer Söderlund (Third party funding in arbitration), Juridisk Tidskrift No. 4 2015/16.

3 For a brief overview of the prospective Swedish TPF market, see Johan Sidklev, Carl Persson, Bruno Gustafsson, Third Party Funding in Sweden – Uncovering Uncharted Territory, Kluwer Arbitration Blog (16 Sept 2018 http://arbitrationblog.kluwerarbitration.com/2018/09/16/third-party-funding-in-sweden-
uncovering-uncharted-territory/).

4 This term also includes investments relating to claims pursued by arbitration.

5 Linn Sundqvist and Gabriel Löwander, 'Pursuing claims in undercapitalised claims vehicles', Europarättslig Tidskrift, No. 4 (2014).

6 In this chapter, third party funding refers to a situation where an investor, that is not party to the proceedings or otherwise connected to the dispute between the parties, is funding the claimant's claim with the sole interest of receiving compensation for its funding by a proportion of the funds that are expected to be received as a result of the legal action. A similar definition is used by Catherine Rogers in Ethics in International Arbitration (Oxford, 2014), p. 185.

7 Statistics from the SCC; http://sccinstitute.se/statistics/.

8 The cases have been financed by third party funders from the United Kingdom.

9 Case reported on p. 841 in NJA 2007. Stefan Lindskog, Skiljeförfarande: En kommentar [Arbitration: A commentary] (2nd edn), p. 4.

10 In Sweden, the unsuccessful party is liable in full for the opposing party's legal fees and litigation costs.

11 Section 4.1.1 of the CPC.

12 Section 4.1.2 of the CPC.

13 Section 4.2.1 of the CPC.

14 Disciplinary Committee's decision in D-2014/1967.

15 Section 4.2.2 of the CPC.

16 See Jonas von Goeler, Third-Party Funding in International Arbitration and its Impact on Procedure, International Arbitration Law Library, Volume 35 (Kluwer Law International; 2016) pp. 33–34.

17 In the case of transfers of damages claims in litigation proceedings, the conditions that must be met for the third party acquirer to take over an ongoing action are set out in the Swedish Code of Judicial Procedure. If the claimant transfers the claim, the third party acquirer will be permitted to assume the claimant's claim and take over the action.

18 Section 2.3 of the CPC.

19 Section 1 of the CPC.

20 In this respect, it should be noted that a lawyer is not permitted to assist in the investor's deceptive conduct, according to the commentary on Section 1 of the CPC.

21 Stefan Lindskog, Skiljeförfarande: En kommmentar [Arbitration: A Commentary] (2nd edn), p. 414.

22 Case reported on p. 841 in NJA 2007.

23 Case reported on p. 841 in NJA 2007.

24 Case reported on p. 317 in NJA 2010.

25 Stefan Lindskog, Skiljeförfarande: En kommmentar [Arbitration: A Commentary] (2nd edn), p. 412.

26 IBA Guidelines on Conflict of Interest 2014, General Standard 6(b).

27 IBA Guidelines on Conflict of Interest 2014, Explanation to General Standard 6(b).

28 IBA Guidelines on Conflict of Interest 2014, Explanation to General Standard 7.

29 Stefan Lindskog, Skiljeförfarande: En kommmentar [Arbitration: A Commentary] (2nd edn), p. 917.

30 See Report for public discussion of the ICCA-Queen Mary Task Force on Third-Party Funding in International Arbitration, Apr. 2018. The ICCA Reports No. 4. at 81.

31 id.

32 id.

33 Chapter, 18, Section 1 of the Swedish Code of Judicial Procedure. This also applies to arbitration proceedings (see Stefan Lindskog, Skiljeförfarande: En kommmentar [Arbitration: A Commentary] (2nd edn), p. 1023).

34 P. 144 in NJA 2000.

35 The cases reported on p. 420 in NJA 2006 and p. 887 in NJA 2014.

36 The trustee in bankruptcy can ask the creditor in bankruptcy to provide security for any compensation payable for the defendant's legal fees and litigation costs. However, if the creditor in bankruptcy is unwilling or unable to provide the security, the trustee in bankruptcy can still bring an action. However, if there is a risk that the bankruptcy estate will not be able to pay the defendant's legal fees and litigation costs if the claim is unsuccessful, an action should not be brought against the creditor in bankruptcy (see Lars Heuman, Specialprocess [Special proceedings] (6th edn), p. 227, and the cases reported on p. 131 in NJA 1999 and p. 420 in NJA 2006).