Sep 2023

Norway

Law Over Borders Comparative Guide:

Commercial Litigation and Cross-border Enforcement

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1 . What is the structure and organisation of local courts dealing with commercial claims? What are the main procedural rules governing commercial litigation?

Structure and organisation of Norwegian courts dealing with commercial claims

The Norwegian court system is organised as a three-tier structure. In the first tier, there are 23 district courts spread geographically across Norway. The second tier is comprised of six appeal courts[1] with jurisdiction within their respective judicial districts. The Supreme Court located in Oslo is the final tier.

The Norwegian courts are generalist courts which consider all types of cases, both civil and criminal. This includes large and complex commercial claims. The Supreme Court will, however, only hear cases of a principal nature with significance outside the specific appealed case, or if there are other particularly important reasons for having the case considered by the Supreme Court. 

The permanent judges in the Norwegian court system are generalists and thus not specialised in a particular area of law. To be appointed as permanent judge, it is normally required to have 10 to 15 years of work experience as a lawyer working in a law firm, in a governmental position, or other legal position.

Main procedural rules governing commercial litigation

The backbone of the Norwegian legal system is statutory law and in particular the Dispute Act,[2] which sets out the procedural rules for commercial (court) litigation. Case law — particularly from the Supreme Court — is also an important source of law for interpretation of the statutory framework. Decisions from the Supreme Court are to some extent also a source of non-statutory law. Preparatory works for statutory law is an important secondary source as it may shed light on the legislator’s purpose for statutes in force and their rationale. 

Other relevant statutes, in addition to the Norwegian Dispute Act, are the Courts of Justice Act,[3] which provides rules for the organization of the Norwegian Courts, and the Enforcement Act[4] which sets out the rules for enforcement of claims. Special procedural rules apply for bankruptcy proceedings.[5] 


[1] Agder Court of Appeal, Gulating Court of Appeal, Frostating Court of Appeal, Borgarting Court of Appeal, Eidsivating Court of Appeal and Hålogaland Court of Appeal. 

[2] Act relating to mediation and procedure in civil disputes of 17 June 2005 No. 90 (the Dispute Act).

[3] Act relating to the Courts of Justice of 13 August 1915 No. 5 (the Courts of Justice Act).

[4] Act relating to enforcement of 26 June 1992 No. 86 (the Enforcement Act).

[5] Act relating to debt negotiations and bankruptcy of 8 June 1984 No. 58 (the Enforcement Act).

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2 . What pre-action considerations apply?

Norwegian court proceedings are commenced by the claimant submitting a complaint to the Conciliation Board[6] or a writ to the district court having jurisdiction. The complaint or writ must fulfil certain requirements to be valid.[7]

The Conciliation Board is a mediation authority and a court of law consisting of lay persons, with the purpose of solving smaller and less complex matters in a time- and cost-effective manner. For some asset claims, there may be a compulsory requirement to have the case considered by the Conciliation Board before the matter is brought to the district court. Conciliation Board proceedings are mandatory for claims where the amount in dispute is below NOK 200,000 or if one or more of the parties have not been assisted by a lawyer.[8] The Conciliation Board may, however, discontinue cases it finds unsuitable for such proceedings.[9] On this basis, larger and complex commercial claims are usually not considered by the Conciliation Board and can be brought before, or will be referred directly to, the district courts.

Before a writ is submitted, the claimant is obliged to send a written notice to the defendant that proceedings will be commenced (litigation notice). The notice shall include information about the claim and its grounds.[10] The claimant shall also provide information about important evidence that the defendant may not have knowledge of.[11] This applies irrespective of whether such evidence supports the claimant’s or the defendant’s position.

The defendant shall respond to the claim notice and its grounds within a reasonable time.[12] Both parties are obligated to investigate whether it is possible to reach an amicable settlement of the dispute.[13]

Fulfilment of pre-action obligations is not a condition for submitting a writ or a complaint. However, not adhering to the pre-action requirements may impact on the court’s decision on legal costs, see Question 7 below.


[6] Nw: Forliksrådet.

[7] The Dispute Act section 9-2 and 6-3.

[8] The Dispute Act section 6-2 (2).

[9] The Dispute Act section 6-11.

[10] The Dispute Act section 5-2 (1).

[11] The Dispute Act section 5-3.

[12] The Dispute Act section 5-2 (2).

[13] The Dispute Act section 5-3.

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3 . What are the main alternative dispute resolution (ADR) methods used to settle large commercial disputes?

Mediation

In recent years, there has been increasing focus in Norway on mediation as an ADR. All courts offer in-court mediation led by a judge acting as a mediator.[14] The preparatory judge usually requests the parties to consider in-court mediation at the early stages of a proceeding.[15] In-court mediation is however not compulsory and requires the parties’ consent. For cases which are mediated, the success rate is high. According to statistics from the courts, around 70%-80% of the cases referred to in-court mediation are settled.[16] Thus, in-court mediation may save the parties time and cost compared to having the claim decided in the court system. In-court mediation is confidential and without prejudice to the parties’ position in the court proceedings.

The parties may also agree to refer a dispute to out-of-court mediation. The Dispute Act chapter 7 has regulations for this purpose, which the parties may agree to follow. However, the parties may also agree to a deviating procedure through private mediation. There are several qualified mediators, for instance lawyers certified as mediators by the Norwegian Bar Association, offering mediation services in Norway. 

Arbitration

Arbitration is also a common ADR for settling larger commercial disputes in Norway, see further below. Potential advantages of arbitration compared to court proceedings include specialised judges, the possibility to agree to confidentiality (both in respect to the proceedings and the award), the possibility for a one-instance proceeding and generally more party autonomy over the process.


[14] The Dispute Act chapter 8.

[15] The Dispute Act chapter 8.

[16] www.domstol.no/no/slik-gjennomfores-en-rettssak/sivil-sak/rettsmekling

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4 . How long, on average, do court proceedings take to reach trial?

According to the Dispute Act, the main hearing shall be set within six months following submission of the writ, unless there are special circumstances requiring that the hearing must be scheduled later. 

The courts’ ability to schedule a main hearing within six months is dependent on their case load and capacity, but the time limit is usually adhered to from the courts’ side. However, and particularly with large and complex commercial cases, it will often take more time to schedule the hearing, partly due to availability of counsel, the parties’ need for more time to prepare for the hearing and in order for procedural issues to be solved. 

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5 . What disclosure obligations apply? Are parties required to disclose unhelpful documents as well as those on which they rely?

The parties are generally subject to wide disclosure obligations in respect of evidence that may be of relevance for the court’s decision. 

As noted under Question 2, a claimant shall also inform the other party about important evidence that the defendant may be unfamiliar with before proceedings are commenced.

During the proceedings, each of the parties are obliged to ensure that the factual basis of the case is correctly and completely explained.[17] Disclosure of evidence may be necessary to fulfil this duty, and the parties have a duty to testify about factual circumstances and to grant access to documents and other objects that may constitute evidence.[18] The parties shall also disclose the existence of important evidence not in their possession that it cannot be assumed that the other party has knowledge of.[19] These obligations apply irrespective of which party the evidence favours. 

It is not uncommon for the parties to request specific evidence from the other party during the proceedings, for example internal correspondence or other evidence which the requesting party normally does not have access to. There is, however, no formalised disclosure stage in the process similar to what is seen in the United Kingdom, for example. Instead, the parties may make specific requests for disclosure throughout any stage of the proceedings until the deadline for completion of case preparations. 

There are important general limitations to the parties’ disclosure obligations: 

  • The evidence must be relevant to the court’s decision.[20] 
  • The evidence must be proportionate to the importance of the dispute.[21]

There are also more specific limitations in the Dispute Act, for example in respect of evidence subject to legal privilege or which contains trade or business secrets.[22] If a requested party does not comply with a request for documents from the other party, the requesting party can demand that the court renders a decision on the matter. Such procedural decisions can, as a general rule, be appealed. 


[17] The Dispute Act section 21-4.

[18] The Dispute Act section 21-5.

[19] The Dispute Act section 21-4 (2).

[20] The Dispute Act section 21-7 (1).

[21] The Dispute Act section 21-8 (1).

[22] The Dispute Act chapter 22.

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6 . Can witnesses be required to attend trial and face cross-examination?

Norwegian court proceedings are based on basic principles such as immediacy, orality and contradiction. When adjudicating on the subject matter of a case, the court will, as the clear main rule, only take into consideration what has been presented during the oral hearing. 

Written evidence must be referred to by the parties’ counsel during the hearing, and witnesses must testify in person. Written witness statements are, however, permitted as evidence if both parties agree, or if the opposing party is given the opportunity to cross-examine the witness during the oral hearing.[23] 

All persons domiciled or present in Norway with information of relevance to the case to be determined by the court are subject to a general duty to testify if summoned by a court.[24] Witness summons can be requested by any of the parties. It is possible to request that a witness is heard remotely, for instance through video or telephone. The limitations for disclosure of evidence as referred to above under Question 5 also apply to witness statements. 


[23] The Dispute Act section 21-12 (2).

[24] The Dispute Act section 24-1.

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7 . What discretion do the courts have in making costs orders?

The main rule for cost orders is that the winning party in an action is entitled to full compensation for its necessary legal costs from the opposing party.[25] A party is considered to have won if the court rules in favour of the party in full or substantially. If the court decides several claims between the same parties, the overall outcome shall be decisive.[26]

The court may, however, exempt the opposite party from legal costs in whole or in part if it finds that compelling grounds justify an exception.[27] Similarly, if the court rules in favour of a party on substantial questions, but without such party winning the case, such party may be awarded legal costs in whole or in part if there are compelling grounds for doing so.[28] These assessments are generally dependent on the court’s discretion, but the following factors in the Dispute Act shall be taken into account:[29]

  • Whether the case was doubtful or if evidence was clarified after the proceedings commenced.
  • Whether a party can be reproached for the proceedings or has rejected a reasonable offer or settlement.
  • Whether the case was important to a party’s welfare and the relative position of the parties justified an exemption. 
  • To what extent that the court has found in favour of a party and which proportion of the legal costs that relate to that part of the case.
  • To what extent the costs were necessary.[30]

[25] The Dispute Act section 20-2 (1).

[26] The Dispute Act section 20-2 (2).

[27] The Dispute Act section 20-2 (2).

[28] The Dispute Act section 20-3.

[29] The Dispute Act section 20-2 (3) and 20-3 cf. 20-2 (2).

[30] The Dispute Act section 25.

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8 . What are the main types of interim remedies available?

Arrest and interlocutory measures

The main types of interim remedies available are arrest of goods and interlocutory measures.

Arrest is an interim remedy for securing monetary claims pending execution. If a property or asset is subject to an arrest, the debtor loses the right to dispose of the arrested asset at the disadvantage of the claimant.[31] An arrested ship would be prevented from being sold and could be prohibited from leaving port, while an arrest of funds in a bank account would prevent the debtor from using or transferring the funds. 

Interlocutory measures are used to secure non-monetary claims pending execution, or to establish a temporary arrangement in a disputed legal relationship to prevent damage or disadvantage. The type of interlocutory measure available will depend on the claim in question, and it may order the defendant to refrain from, perform or tolerate an act, or that property shall be removed from the defendant’s possession and moved into custody.[32] For example, an interlocutory measure could prevent a book launch due to a potential breach of rules on protection of privacy, or deferral of a governmental decision entering into force. 

General conditions

The two main conditions for arrests of goods and interlocutory measures are as follows:

  1. The claimant must demonstrate that it has a monetary claim (arrest) or a claim for something other than the payment of money (interlocutory measure) against the debtor.[33]
  2. The claimant must demonstrate that there is a “basis for security”.[34] 

In respect of arrests, there is a basis for security under item 2 above if the debtor’s conduct gives reason to fear that enforcement of the claim would otherwise be impossible, or considerably more difficult, or must take place outside of Norway.[35]

For interlocutory measures, there is a basis for security if the debtor’s conduct makes it necessary to provisionally secure the claim because the execution of the claim would otherwise be considerably more difficult, or when it is necessary to make a temporary arrangement in a disputed legal matter to avert considerable loss or disadvantage, or to avoid violence which the conduct of the debtor gives reason to fear.[36]

For both arrests and interlocutory measures, the courts are given discretion not to grant the measure if it is not considered reasonable or proportionate.[37]

It should be noted that special conditions apply for detaining ships by arrest.[38] The debtor may also prevent or set aside any arrest by providing security for the monetary claim.[39]


[31] The Dispute Act section 33-7.

[32] The Dispute Act section 34-3.

[33] The Dispute Act section 33-3 and 34-2.

[34] The Dispute Act section 33-2 and 34-1.

[35] The Dispute Act section 33-2 (1).

[36] The Dispute Act section 34-1 (1).

[37] The Dispute Act section 33-2 and 34-1.

[38] The Norwegian Maritime Code of 24 June 1994 No. 39 section 92 and 93.

[39] The Dispute Act section 33-5 and 33-9.

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9 . What approach do the local courts adopt with respect to arbitration? What arbitration law applies and is it based on the UNCITRAL Model Law?

The Norwegian Arbitration Act

Arbitration in Norway is governed by the Norwegian Arbitration Act, which is based on the UNCITRAL Model Law. The Arbitration Act is more detailed and there are some deviations from the Model Law, inter alia in respect of confidentiality, requirements for the arbitration agreement, evidence, application of law and costs. Nevertheless, on an overall basis the deviations are immaterial.

Norwegian courts’ approach with respect to arbitration

The Norwegian courts have a limited role with respect to arbitration proceedings, and have only competence in arbitration matters to the extent expressly set out in the Arbitration Act.[40] The involvement of the courts is mainly limited to the following matters:

  • Appointment of the arbitration tribunal if not possible under the arbitration agreement or the Arbitration Act.[41]
  • Decisions on whether an arbitrator may be excused due to being legally or de facto unable to perform their functions.[42]
  • Decisions on provisional security (arrest and interlocutory measures).[43]
  • Decisions of appeals concerning the arbitration tribunal’s jurisdiction.[44]
  • Decisions of appeals concerning an arbitrator’s competence.[45]
  • Decisions of appeals concerning compensation to the arbitration tribunal.[46]
  • Decisions of appeals concerning security for the tribunal’s costs.[47]
  • Assistance with taking of evidence.[48]
  • Assistance with obtaining advisory opinions from the EFTA court on the interpretation of the EEA agreement.[49]

[40] The Arbitration Act section 6.

[41] The Arbitration Act section 13.

[42] The Arbitration Act section 16.

[43] The Arbitration Act section 8.

[44] The Arbitration Act section 16.

[45] The Arbitration Act section 15.

[46] The Arbitration Act section 15.

[47] The Arbitration Act section 41.

[48] The Arbitration Act section 30.

[49] The Arbitration Act section 30.

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10 . Can arbitrators grant interim relief?

The competence to grant interim remedies such as arrest and interlocutory measures (see above, Question 8) lies exclusively with the courts. 

The arbitration tribunal may, however, grant interim relief under the Arbitration Act, upon request from one of the parties, as it considers necessary based on the subject matter of the dispute.[50] This regulation corresponds to a large extent to section 17 of the Model Law.[51] The arbitration tribunal is given a wide discretion to determine what the interim relief should be. However, as an interim measure under the Arbitration Act cannot be enforced and will not have effect in respect to third parties, this is an important practical limitation.

The Arbitration Act expressly provides that the parties can agree that the provision giving the arbitration tribunal competence to grant interim relief shall not apply.[52]


[50] The Arbitration Act section 19.

[51] The Arbitration Act section 19.

[52] The Arbitration Act section 19.

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11 . On what grounds can an arbitration award be appealed?

An arbitration award is final, and the tribunal’s decision on the merits or the subject matter of the case cannot be appealed to the Norwegian courts. The courts can, however, set an arbitration award aside as invalid in the following circumstances:[53]

  • A party to the arbitration agreement lacked legal capacity.
  • The arbitration agreement is invalid.
  • A party was not given proper notice of the appointment of an arbitrator or the arbitration proceedings or was not given an opportunity to present its view on the case. 
  • The award falls outside the jurisdiction of the arbitration tribunal.
  • The composition of the arbitration tribunal was incorrect.
  • The arbitration procedure was contrary to the law or the arbitration agreement and this is likely to have impacted the decision.
  • The dispute is not capable of settlement by arbitration under Norwegian law.
  • The award is contrary to public policy.

An action to set aside an arbitration award must be brought within three months of the award being received.


[53] The Arbitration Act section 43.

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12 . What international conventions and agreements on enforcement of judgments or arbitral awards is your jurisdiction a party to?

Norway is party to the Lugano Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (Lugano Convention), covering the EU and EFTA countries. 

In respect of arbitration, Norway is party to the New York Convention on the recognition and enforcement of foreign arbitral awards. 

Norway has also entered into conventions and agreements with certain specific countries on enforcement of judgments within several judicial areas. There is inter alia a convention between Norway and the UK from 1961 on enforcement of judgments, which was revived after “Brexit” in 2020 by a bilateral agreement with the United Kingdom.

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13 . What types of judgments in commercial matters are enforceable and what types are excluded?

All judgments and other decisions by Norwegian Courts are legally enforceable when they can no longer be appealed. This applies irrespective of whether the decision is a declaratory judgment or a judgment for performance. The same applies for arbitration awards under the Arbitration Act. The enforcement procedure is regulated in the Enforcement Act.

For enforcement of foreign judgments and decisions, please refer to Question 14. 

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14 . What is the process for registration of foreign judgments and arbitral awards?

Foreign judgments and arbitral awards are recognised[54] and can be enforced in Norway to the extent that this follows from law or agreement with the relevant foreign state (see above, Question 12).[55] There is also a general requirement that the judgment, decision or arbitration award is legally enforceable in its country of origin.[56]

There is no general process or requirement for registration for foreign judgments and arbitration awards in Norway, and this must be based on an interpretation of the law or agreement in question.


[54] The Dispute Act section 19-16.

[55] The Enforcement Act section 4-1.

[56] The Enforcement Act section 4-17.

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15 . Once the judgment or award is registered, what are the available methods of execution?

The Enforcement Act sets out several methods of execution depending on the judgment or award, and also on available assets on the debtor side. The main methods of execution are set out below:

  • Execution lien and forced sale of property, financial instruments and monetary claims.
  • Attachment of earnings.
  • Extradition of property and securities.
  • Eviction from real estate.
  • Security.
  • Right to conduct a certain action, performance of an action by the Enforcement Authorities or fines for breach of obligation to act. 

If enforcement measures under the Enforcement Act lead to bankruptcy and liquidation of the debtor, the debtor will be subject to separate bankruptcy proceedings under the Bankruptcy Act. Charging orders taken in the last three months before the bankruptcy will generally not be recognised by the bankruptcy estate.

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16 . What interim measures are available pending enforcement?

The interim measures available pending enforcement are arrest of goods and interlocutory measures. See above, Question 8.

EXPERT ANALYSIS

Chapters

Bermuda

Charlotte Donnelly
Keith Robinson
Mahogany Bean

British Virgin Islands

Kate Lan
Nicholas Lee
James Noble

Canada

Robert J.C. Deane
Sean Gallagher

Cayman Islands

Amelia Tan
Joni Khoo
James Noble

China

Jessica Fei

England and Wales

Ben Bruton
Jake White
Suzanne Labi

Germany

Dr. Justus Jansen
Jamsched Amiri

Guernsey

Elaine Gray
Rebekah Johnston
Robin Gist

Hong Kong

Ian De Witt
Natalie Lam

Japan

Claire Chong
Kaori Sugimoto

Jersey

Christopher Tan
John Kelleher

Malaysia

Janice Ooi Huey Peng
Sharon Chong Tze Ying

Pakistan

Mansoor Hassan Khan

Saudi Arabia

Fahad AlDehais AlMalki
Salman AlAnazi
Talal AlOtaibi

Singapore

Calvin Ong
Monisha Cheong
Wendy Lin
Josephine Choo

South Korea

Daniel Chua
SeungMin Lee
Youjoun Ha

Taiwan

Angela Y. Lin
Joyce N. Chang

Thailand

Jittipong Champreechar
Napassorn Panitchewakul
Sarocha Thongperm

United Arab Emirates

Ayman Ibrahim
Hassan Al Shaqsi
Nasser Al Osaiba
Sleiman Jorr

United States

Arthur Schoen
Julia Mano Johnson
Natalie Holden

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