In the case “Speditörpanten” (NJA 2022 p. 574), the Supreme Court found that the provisions of the standard agreement NSAB 2015 constitute commercial practice in the shipping and logistics industry. Advokatfirman Lindahl has previously commented on the contractual law aspects of the ruling, which you can read about here.
This commentary describes the consequences of the ruling from the point of view of bankruptcy law and in the case of distribution in bankruptcy. The circumstances of the case were as follows.
A logistics company had been dealing with distribution of goods for a sportswear company for a long time. The logistics company’s services included dealing with transports, customs matters, warehousing, order management, packaging, delivery to customers and returns management.
The sportswear company experienced payment difficulties in autumn 2019 and was declared bankrupt in early 2020. At the time when the bankruptcy was filed, the logistics company had goods in stock belonging to the bankrupt company with a value of approximately SEK 7 million and a claim against the bankrupt company of approximately SEK 1.6 million for services performed during a period of just over six months prior to when the bankruptcy was filed. Approximately SEK 6 million was available for distribution to the bankrupt company’s creditors as a result of liquidation work in the bankruptcy. The logistics company filed its claim in the safeguarding procedure and claimed a right of retention for its entire claim in accordance with section 4(3) of the förmånsrättslagen [law on priority rights]. The logistics company and the bankrupt’s estate agreed that approximately SEK 400,000 of the claim concerned services relating to goods that were in the warehouse when the bankruptcy was filed and that this amount was associated with a right of retention and therefore a specific priority right in accordance with Section 4(3) of the law on priority rights. Nevertheless, the parties disagreed as to whether the remaining portion of the logistics company’s claim should be associated with a priority right because that portion of the claim concerned payment for services relating to goods that the logistics company no longer had in stock. Prior to when the bankruptcy was filed, these goods had been delivered to end customers on a continuous basis and were therefore not in the logistics company’s possession.
The point at issue in the case before the Supreme Court was therefore whether the logistics company’s claims for assignments carried out were covered by a specific priority right in accordance with section 4(3) of the law on priority rights on all the goods that a shipping company holds for a customer, a so-called kopplad säkerhetsrätt [linked security right].
As stated above, the Supreme Court established that the entire NSAB 2015 standard agreement constitutes what is referred to as “commercial custom” in the shipping and forwarding sector and that NSAB 2015 thus constitutes the contents of the agreement even though the parties had not previously applied or referred to the standard agreement. The standard agreement contains a provision whereby the logistics company had a right of retention on the stock including for claims that did not relate to the stock goods that were in the logistics company’s possession at the time when the bankruptcy was filed, known as a kopplad säkerhetsrätt [linked security right]. The logistics company was therefore awarded full distribution of its claim in the bankruptcy, taking precedence over the other creditors.
In addition to the value of the ruling as a precedent in contractual law, the ruling has an impact on the order of priority rights in situations where a shipping company, a storage operator or a company providing similar third-party logistics services in a broader sense handles stock items for a company that is declared bankrupt. The order of priority rights governs the order in which creditors are entitled to distribution in a bankruptcy and, if a creditor has a security, e.g. in the form of a pledge or floating charges, those claims are given priority for distribution. Banks and other creditors with floating charges as security should take into consideration the fact that stock items – which are movable property and which are included in the basis for floating charges – can instead serve as security for a bankrupt company’s logistics partner with a better priority right. In a corresponding manner, a logistics company can be considered through the ruling to incur a lower credit risk now than was the case previously. Nor can we rule out the fact that prevailing standard agreements in other industries not specifically governed by law may also be regarded as automatically applicable, in whole or in part, with the resulting effects.
The bankrupt’s estate was represented in the case by the appointed trustee in bankruptcy Axel Weibull, assisted by Victor Wodlén.
Lindahl is one of Sweden’s leading law firms in insolvency law, with solid, extensive experience of bankruptcies. We act as trustees in bankruptcy and are appointed in a number of different courts. Our lawyers have dealt with some of the largest bankruptcies in Swedish history.
