The Dispute Resolution Review: Norway

Introduction to the dispute resolution framework

The Norwegian legal system is based on written statutory law, which constitutes the backbone of the legal framework. However, the text in acts often leaves room for interpretation. Case law from the Supreme Court, with an interpretation of the written acts, is therefore also an important source of law. Preparatory works make up another important secondary source of law, carrying weight through shedding light on the rationale underpinning the statutes in force.

The Norwegian courts are organised in a three-tier system. The initial level is comprised of 23 district courts.2 Decisions from the district courts can be appealed to one of the six appeal courts. Judgments from the appeal courts can be appealed to the Supreme Court. However, the Supreme Court decides itself which cases it will hear, and focuses on disputes that possess potential legal value as precedent.3

The ordinary courts in Norway are generalist courts that hear all types of cases, both civil and criminal. The judges have different backgrounds: some are from the public sector such as ministries, the Attorney General or council solicitor, some are from the prosecution authority, and some are lawyers from private law firms.

Norway is not a member of the EU; however, Norway is closely related to the EU through the EEA Agreement.4 As part of the EEA Agreement, a lot of EU law is implemented into Norwegian law.5

Furthermore, the state is under a constitutional obligation to uphold and fulfil recognised human rights.6 Through a separate act of 1999,7 several human rights conventions were formally transposed into Norwegian law, for example the Council of Europe Human Rights Convention of 1950.

The year in review

Highlights from the past year include three cases from the Norwegian Supreme Court.

i The bankruptcy exception in the Lugano Convention8

An employee was working for the Norwegian company Bautas AS when he fell and was injured in October 2007. The employee filed a claim for compensation under the employer's occupational injury insurance provided by the Danish insurance company Gaia AS (later changed to Alpha Insurance AS) for his financial loss caused by the injury. Three months after the insurance company rejected the employee's claim in February 2018, bankruptcy proceedings were commenced by the order of the Maritime and Commercial Court in Denmark. In June 2018, the employee filed his claim to the District Court in Bergen, Norway.

The insurance company argued that the case had to be rejected, and the claim had to be put forward as a claim for dividend in the bankrupt estate under the applicable laws in Denmark. The claim was rejected by the District Court, but the Court of Appeal came to a different conclusion, arguing in its judgment that the claim was not subject to the bankruptcy exemption in Article 1 No. 2 (b) of the Lugano Convention (Convention). The insurance company filed an appeal to the Norwegian Supreme Court.

The main question for the Supreme Court was whether the lawsuit could be brought at the employee's ordinary legal venue in Norway, including whether the Convention could be applied. Both Norway and Denmark are parties to the Convention, and the claim falls within the general scope of the Convention, which comprises 'civil and commercial matters', (see Article 1 No. 1).

However, it is stated in the Convention's Article 1 No. 2 (b) that the Convention shall not apply to bankruptcy. After analysing both Norwegian and EU case law, including the Court of Justice of the European Union's ruling in Riel,9 the Supreme Court concluded that lawsuits concerning the acknowledgement of claims towards a bankruptcy estate are subject to the bankruptcy exception. Consequently, the Convention did not apply.

The Supreme Court further stated that the bankruptcy exemption in the Convention was not a rule of jurisdiction, meaning that the lawsuit does not automatically have to be filed in the country where bankruptcy was opened. The Supreme Court emphasised that the natural understanding of the wording of the Convention is that, if the bankruptcy exception is applicable, national rules on jurisdiction will apply. However, the Supreme Court conclusion was to reject the claim of the employee, as the claim did not have a strong enough connection to Norway since bankruptcy was opened in Denmark: see the Norwegian Dispute Act Section 4-3. The Supreme Court, inter alia, emphasised that disputes that are subject to the bankruptcy exemption of the Convention should be subject to the jurisdiction of the country where bankruptcy was opened due to policy considerations.

ii Bringing legal actions of a general nature10

In 2018, the majority of the Norwegian Parliament11 approved the EEA Committee's decision to implement the EU laws in the Third Energy Package into the EEA Agreement with reference to the Norwegian Constitution Section 26. Following this approval, a Norwegian organisation called No to the EU brought action against the government claiming that the government had a duty to refrain from incorporating the Third Energy Package into Norwegian law, as such incorporation constituted a cession of sovereignty. No to the EU argued that such a decision should have been made in accordance with the Constitution Section 115 with a majority of three-quarters, and that the implementation of the Third Energy Package thus had to be stopped.

The government, inter alia, argued that the organisation's claim had to be rejected as it did not concern a concrete legal claim, but rather a more abstract and general legal principle. The general rule is that lawsuits of the latter nature are prohibited under Norwegian law under Section 1-3 of the Norwegian Dispute Act.

The Supreme Court stated that the preparatory works of Section 1-3 of the Dispute Act give some room for actions of a more general scope. For the courts to allow such a general action, an overall assessment must be made as to whether there is a 'particular' need for clarification of a legal issue. Several factors may be relevant for this overall assessment, depending on the circumstances. In its judgment, the Supreme Court emphasised that there was a particular need to try the claim before the courts, since it concerned an unclarified legal question of public importance. The claim was also suitable for clarification in a more general form based on the legal and factual basis of the claim. Hence, the courts would not necessarily have a better decision-making basis if the case was brought in a less general form. The Supreme Court further argued that the transfer of authority to international bodies was an increasingly relevant issue, and that a judgment clarifying the boundary between the two relevant constitutional provisions would provide guidance in future cases.

Based on the above, the Supreme Court concluded that the requirements in Section 1-3 of the Dispute Act were met, and thus the organisation's claim was allowed to be tried by the courts.

iii The application of the domicile principle to private distributions of estates12

In 2009, a Norwegian citizen domiciled in Switzerland passed away. The deceased left a considerable fortune, and a will regulating the distribution of such fortune. The will stated that the estate was to be divided privately in Norway under Norwegian inheritance law. A dispute broke out between the heirs under the will concerning the validity of a testamentary disposition added in 2002, which stipulated that A, who was a resident of South Africa, would inherit 1/16th of the estate's funds. The other heirs under the will brought the dispute before a Swiss court, which decided that the disposition in favour of A was invalid. The case was resolved in accordance with the deceased's testamentary instructions, in line with Norwegian inheritance law. A appealed the judgment, but the appeal was rejected. In 2019, A therefore brought the case before the Norwegian courts, claiming that the other heirs were obliged to pay him 1/16th of the estate's funds. The case was rejected by Oslo District Court. The judgment was appealed, and Borgarting Court of Appeal's judgment was to allow the case. This judgment was appealed by the other heirs to the Supreme Court.

The main question for the Supreme Court concerned the applicability of the procedural domicile principle regarding inheritance disputes under private distributions of estates with international branches. The other heirs argued that the non-statutory international domicile principle that applies to public distribution of an estate had to apply similarly to private distributions. The principle states that any disputes related to the distribution of the funds of the estate should, as a general rule, be resolved by a competent court at the place where the deceased was domiciled. The Supreme Court did not agree with this and concluded unanimously that such a principle could not be established for private distribution in violation of the rules of jurisdiction in Chapter 4 of the Norwegian Dispute Act, under which the case was subject to Norwegian jurisdiction.

The conclusion was based mainly on the nature of the rules of jurisdiction related to distribution of an estate, which is a two-track system differentiating between public and private distribution. Thus, legal sources referred to by the other heirs concerning public distribution were not relevant for a case of private distribution. The Supreme Court emphasised that under private distribution, the funds of the estate are released to the heirs, and it is the heirs who have the capacity to sue and be sued in relation to the distribution. Where such a case naturally belongs, and can be treated in the most effective and economically efficient manner, will vary based on the concrete circumstances. Such circumstances may include where the heirs and the executor of the will are domiciled, and where the deceased's funds are located. Consequently, the case was subject to Norwegian jurisdiction under the Norwegian procedural rules, that is, Sections 4-3 and 4-4 of the Dispute Act.

Court procedure

i Overview of court procedure

Norwegian civil court proceedings are governed by the Dispute Act of 2005,13 which entered into force in 2008. The Dispute Act is supplemented by the Court Act of 191514 and special procedural rules according to, for example, the Enforcement Act15 and the Bankruptcy Act.16

The Dispute Act is based on the principles of orality, proportionality, concentration, contradiction, immediacy and the parties' right of free disposition. The principle of immediacy entails that the court may only base its judgment on what has been said or argued during the main hearing.17 According to the principle of orality, all written evidence and witnesses must be presented to the court by the reading of documents and testimony by witnesses before the court.

The principle of free disposition implies, inter alia, that the court's judgment must fall within the scope of the parties' request for relief, and the court may only base its ruling on the grounds for the request for relief that has been invoked. The parties also have the primary responsibility for presenting evidence.

All communication between counsel and the courts of all instances is performed electronically through a digital litigation platform, which from 2019 is mandatory for all counsel. This has also led to court hearings being based on digital extracts of the written evidence uploaded through the platform, enabling counsel and judges to work digitally throughout a case.

The Lugano Convention applies as statutory law in Norway.

ii Procedures and time frames

A lawsuit before Norwegian courts is initiated by filing a statement of claim with the competent district court or conciliation board. The statement of claim must meet certain content requirements set forth in the Dispute Act.18

Conciliation board proceedings19

Before an asset claim can be heard by the district court, it must be heard by a conciliation board unless the amount in dispute is at least 200,000 kroner and both parties have been represented by a lawyer.20 The procedure before the conciliation board shall assist the parties in achieving a simple, swift and inexpensive resolution of the case through mediation or judgment.

However, the conciliation board may only pass judgment at the request of one of the parties if the case concerns an asset claim and the amount in dispute is less than 200,000 kroner. Judgments of the conciliation board may be appealed to a district court within one month of the conciliation board's judgment.

Court proceedings

After receipt of the statement of claim, the district court will order the defendant to file a statement of defence, which should normally be filed within three weeks. Any objection to the court's jurisdiction or other grounds for dismissal must be mentioned in the statement of defence. If the defendant fails to file a statement of defence within the time limit set forth by the court, the court will normally award a judgment in absentia based on the plaintiff's presentation of the case and the claim.

Depending on the circumstances of the case and amount in dispute, the procedure will follow either the small claims track or the normal procedure. The small claims procedure encompasses all cases where the amount in dispute is less than 250,000 kroner.21

After receipt of the statement of defence, the court will schedule a preparatory meeting. During the preparatory meeting, important procedural questions and dates are clarified, including the time of the main hearing and whether a judicial mediation meeting should be scheduled. The main hearing shall be scheduled not more than six months after the receipt of the statement of claim unless special circumstances necessitate this.

At each stage of the case, the courts shall consider the possibility of a full or partial amicable settlement to the legal dispute through mediation or judicial mediation unless the nature of the case or other circumstances suggest otherwise.22 Judicial mediation is court-assisted mediation where a judge or a court-appointed expert acts as mediator. This service is quite often used by parties, particularly in commercial disputes.

Following the conclusion of the preparation phase, the parties must prepare a summary of submissions. After the date of these submissions, the parties may no longer submit new claims, new legal arguments, written evidence or witnesses without either the other party or the court consenting to this.

The main hearing may be divided into three subphases:

  1. the opening statement, which includes presentation of written evidence;
  2. testimony from the parties and hearing of witnesses, including expert witnesses; and
  3. the closing statements.

During the opening statement, the claimant's counsel shall present the case in a focused manner, and will review documentary evidence and other evidence that will not be given in the course of testimony or at an on-site inspection. The defendant's counsel will then be given the opportunity to present the defence. The opening statement shall be of a more objective nature and less argumentative than the closing statement.

The second subphase consists of testimonies from both parties and witnesses. The claimant shall testify first unless special reasons suggest otherwise. Then the court will hear witnesses, including private and court-appointed expert witnesses.

Finally, the parties' counsel shall be permitted to address the court twice by way of closing statements.

The judgment shall be pronounced within four weeks after the main hearing or appeal hearing is concluded. If the case is heard by a single judge at the district court level, the time limit is two weeks.23

A judgment or procedural order by the district court can be appealed to the court of appeal. Further appeal to the Supreme Court is possible, but the Supreme Court will only hear disputes that possess potential legal value as precedent, or if the dispute is of particular interest to one or more of the parties involved.

iii Class actions

The possibility of class actions was introduced in Norway in 2008 through Chapter 35 of the Dispute Act. The conditions for class actions are that:24

  1. several legal entities have a claim or obligation based on the same or substantially the same factual and legal basis;
  2. the claims can be decided by the court according to the same procedural rules;
  3. the class action is the most suitable way of handling the case; and
  4. it is possible to designate a group representative according to the regulations in the Dispute Act Section 35-9. The group representative will be responsible for case costs.

There is the possibility for both opt-in and opt-out variations of a class action.

Although the class action possibility has now existed for 12 years, there have not been many class action cases in Norway. Nevertheless there have been some, for instance class actions towards banks. One case that received a great deal of public attention was a case led by the Norwegian Consumer Council on behalf of 180,000 persons against Norway's largest bank, DNB, regarding a claim for repayment of charges for administration of funds the bank had charged its customers. DNB won the case in the district court, but the consumers won the case in the appeal court.25 DNB's appeal to Supreme Court was dismissed.26

Another well-known class action case was a case launched by property owners in Oslo against the Municipality of Oslo regarding property valuation tax. The case went all the way to the Supreme Court in 2019, and the property owners partly won the case.27

iv Representations in proceedings

Natural persons have the right to represent themselves in court proceedings. Employees may represent legal entities. Beyond this, the main rule is that only lawyers and authorised assistant lawyers may act as counsel in legal proceedings.

If a party who is not represented by counsel is unable to present the case in a comprehensible manner, the court may order the party to engage legal counsel.

A foreign lawyer may act as counsel if the court finds no objections to this in view of the nature of the case and other circumstances.

v Service out of the jurisdiction28

Norway accepts service of documents in civil matters outside of the jurisdiction to persons who have a known address abroad, if and to the extent this is accepted by the relevant local law. The main regulations are the Court Act Section 180 and Regulation No. 1810 of 11 October 1985 on Postal Service, supplemented by relevant treaties.

The most important treaty regarding service out of the jurisdiction in civil matters that Norway has ratified is the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. This Convention applies between Norway and the signatory states. For service within the Nordic countries, the Nordic Convention on Mutual Legal Assistance in Service and Taking of Evidence of 1974 applies.29

The main rule is that service out of the jurisdiction to Norwegian citizens is done through the Norwegian embassy or other Norwegian foreign service mission. Otherwise, service is performed according to applicable treaties and relevant local law.

Norwegian authorities can serve through the post service to the extent this is accepted by other states through treaties.30

In cases where Norway has no treaty with a state regulating service in that state, a request for service can be sent through the Norwegian Ministry of Justice. The Ministry of Justice will then send it via the relevant Norwegian foreign mission, which will pass it on to the relevant state's Ministry of Foreign Affairs. Experience shows that service often is obtained through such procedure even though there is no treaty between the states.

vi Enforcement of foreign judgments

Civil claims that have been decided in a foreign state by way of a final and enforceable ruling passed by that state's courts or administrative authorities or by way of arbitration or in-court settlement shall also be legally enforceable in Norway to the extent provided by statute or agreement with the said state.31

The most important treaty regarding enforcement is the Lugano Convention of 2007. There are few bilateral agreements between Norway and other states regarding enforcement. However, one to mention is a convention between Norway and the United Kingdom from 12 June 1961 providing for the reciprocal recognition and enforcement of judgments in civil matters. This convention was brought to life again with some adjustments in November 2020 due to the United Kingdom not being part of the Lugano Convention from 1 January 2021 because of Brexit. The amended 1961 Convention will stay in force until the United Kingdom becomes an independent party to the Lugano Convention.

Final and enforceable rulings on civil claims rendered by a foreign court are also enforceable in Norway if a foreign jurisdiction has been agreed between the parties.32

As for arbitration rulings, they are enforceable in Norway in accordance with the Convention of the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (New York Convention).

vii Assistance to foreign courts33

Assistance to foreign courts is regulated in the Court Act Section 46 supplemented by treaties. A main principle is that a request for assistance shall be sent through the Ministry of Justice. Norway only has agreements regarding direct contact with local courts with the Nordic countries and Germany.

Important treaties that are ratified by Norway regulating assistance to foreign courts include the Hague Convention of 1 March 1954 on civil procedure, the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters.

viii Access to court files34

The public is entitled to access court hearing protocols, protocols from judicial mediation, judicial rulings and statements of costs.

In cases that are subject to an oral hearing, the public is also entitled to access closing statements, submissions, evidence that has been invoked during the oral hearing and supporting documents.

With some exceptions, all court hearings are open to the public.

ix Litigation funding

Generally, litigants will have to fund their own litigation or do so by means of insurance. There is an Act on Legal Aid35 that gives the right to free (or partly free) legal assistance in certain cases. However, the criteria are strict (e.g., (very) low income).

Historically there has not been a tradition for third-party litigation funding in Norway. Nevertheless, over the past few years third-party litigation funding has increased, and Therium Capital Management Nordic AS (Therium Nordic) has emerged as probably the most notable player in the Norwegian litigation funding market. There is no legislation or mandatory rules in Norway explicitly governing third-party funding. In a ruling against Therium Nordic, the Norwegian Financial Supervisory Authority (FSA) stated that professional third-party funding is a financing activity subject to the requirements of an FSA licence in order to operate. Therium Nordic has appealed the decision to the Norwegian Ministry of Finance. The FSA has allowed Therium Nordic to continue its activity while the appeal is pending.

Legal practice

i Conflicts of interest and Chinese walls

Conflicts of interest are regulated in the Bar Association's Code of conduct for lawyers, which is incorporated into a regulation regarding the Court Act.36 Section 3.2 of the Code of conduct deals with conflict of interest issues. The main rule is that a lawyer should not take an assignment if there is a risk of breach of the lawyer's loyalty towards a client or if there is a risk of breach of the lawyer's duty to act independently. Chinese walls are not accepted.

ii Money laundering, proceeds of crime and funds related to terrorism

Measures against money laundering are regulated in the Anti-Money Laundering Act of 1 June 2018. The Act implements the Fourth EU Directive on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing.37

The Act applies to lawyers in several cases, for instance when assisting clients with financial transactions. However, assistance of clients in disputes is generally exempted from the scope of the Act.

iii Data protection

A new Act on Data Protection entered into force on 20 July 2018.38 This Act incorporated the EU General Data Protection Regulation into Norwegian law. Hence, Norwegian law is compliant with the harmonised EU rules on data protection.

Documents and the protection of privilege

i Privilege

Communication between lawyers and their clients is subject to legal privilege. The same applies to in-house counsel and foreign lawyers.

According to the Supreme Court's practice, everything a lawyer obtains or gains access to on behalf of a client as part of a client relationship is subject to legal privilege. This also covers the existence of a client relationship, the client's identity and other information that can directly or indirectly provide the basis for conclusions about the contact a lawyer has or has had with a client and others in connection with the assignment.

ii Production of documents

Norwegian rules on the production of documents are more restricted than, for example, the US rules on discovery. The parties shall provide such accounts and present such evidence as are necessary to fulfil their duties according to the Dispute Act, and they have a duty to give testimony and access to evidence. A party shall also disclose the existence of important evidence that is not in the party's possession and of which the party has no reason to believe that the opposite party is aware.39

Normally, petitions for access to evidence are made by informal 'provocations' set forth in pleadings by either party. If the counterparty does not comply, the court shall, however, give an order as to whether the party must present the requested evidence. A formal petition for access to evidence must meet requirements for relevance, specification and proportionality under the Dispute Act.

Alternatives to litigation

i Overview of alternatives to litigation

Although most disputes are settled in the ordinary courts, both arbitration and mediation are common methods of settling disputes in Norway.

Arbitration has traditionally been mostly ad hoc arbitration. However, this might be on the brink of changing. The Arbitration and Dispute Resolution Institute of the Oslo Chamber of Commerce has revitalised its rules to make them more attractive, and at the end of 2017 a new arbitration institute, the Nordic Offshore & Maritime Arbitration Association (NOMA), was established. The main purpose of NOMA is to facilitate international arbitration in the Nordic countries, and it has already been used in several cases.

Mediation is offered by all courts but can also be arranged privately outside of court.

ii Arbitration40

All arbitration that takes place in Norway – both domestic and international – is governed by the Norwegian Arbitration Act (NAA).41 The NAA is based on the UNCITRAL Model Law and applies to all types of cases, small and large, professional parties and consumers.

Since the NAA applies also to all domestic arbitration cases, the build-up and content of the NAA is somewhat different from the Model Law. Hence, the NAA is more detailed than the Model Law. Some issues that can be highlighted are as follows.

Confidentiality and public access

According to Section 5 of the NAA, the arbitral proceedings and the arbitral award are not confidential unless the parties have specifically agreed to this regarding the specific case at hand. An agreement on confidentiality has to be entered into after the dispute has arisen. It is not sufficient to agree to this beforehand in the agreement containing the arbitration clause. The Model Law does not have such a clause.

The arbitration agreement

NAA Section 10 has provisions regarding the arbitration agreement. It does not require the arbitration agreement to be in writing, although this is most common. According to NAA Section 10 Second Paragraph, an assignment of a contract also includes assignment of an arbitration clause if the opposite has not been agreed by the parties.

Evidence

NAA Section 28 has regulations regarding evidence. The parties have the responsibility for presenting the evidence in the case and parties have the right to submit whatever evidence they wish. However, the arbitration tribunal may refuse evidence that clearly is not significant to the case. Further, the arbitration tribunal may limit the submission of evidence if the amount of submitted evidence is disproportional to the significance of the dispute for the parties or the significance the evidence can have for the decision of the dispute.

Application of law

If the parties have not decided on any substantial law, the arbitration tribunal shall apply the Norwegian conflict of laws rules. The arbitration tribunal can only make its decision based on reasonableness if the parties have explicitly agreed to this.

Costs

Chapter 8 of the NAA (Sections 39 to 41) have regulations regarding the determination of costs to the arbitration tribunal (Section 39), the allocation of the determined costs to the arbitration tribunal and the parties' case costs between the parties (Section 40) and provisions regarding security for costs (Section 41). Such provisions are not found in the Model Law.

According to Section 39, the arbitration tribunal determines its own remuneration and expenses to be covered if nothing else has been agreed between the arbitral tribunal and the parties.

The parties are jointly liable for the costs to the arbitration tribunal42 but, upon request from one of the parities, the arbitration tribunal can divide the costs of the arbitration tribunal between the parties as the arbitration tribunal finds appropriate.43 According to NAA Section 41, the arbitration tribunal can demand that the parties provide security for the costs of the arbitration tribunal, if the opposite has not been agreed between the arbitration tribunal and the parties.

Upon request from one of the parties, the arbitration tribunal can decide that the other party must cover all or part of the costs of the opposing party to the extent the arbitration tribunal finds this appropriate.

Consumer protection

According to NAA Section 11, arbitration agreements entered into before a dispute has materialised are not binding on the consumer. However, a consumer can agree to arbitration after the dispute is a fact. In this case, the arbitration agreement where the consumer is a party must be in writing in a separate document signed by both parties.

The above said, in general it is fair to say that the deviations from the Model Law are immaterial. It is also possible for the parties to contract out of the provisions of the NAA, and hence adjust deviations from the NAA if desired.

Regarding the composition of the arbitration tribunal, the main rule is a tribunal of three arbitrators. In smaller cases, it is quite common for the parties to agree on a single arbitrator. Where the tribunal is to consist of three members, the main rule is that the parties try to agree on all three arbitrators and that the whole tribunal is appointed jointly by the parties without getting to know which of the parties nominated each of the arbitrators. The fall back, if the parties do not agree to the full composition of the arbitration tribunal, is that each party nominates one arbitrator and these two jointly appoint the chairperson.

iii Mediation

There has been quite a lot of focus on mediation in recent years in Norway. All courts offer in-court mediation, which is regulated by the Dispute Act Chapter 8. However, it is up to the parties if they want to accept in-court mediation. A substantial number of disputes are mediated in the courts each year, especially at the district court level. Out of the disputes that are mediated in court, a high percentage are resolved during the mediation process or shortly thereafter. Mediation in court is led by a judge who acts as a mediator. The parties are free to leave the mediation at any point in time. If the dispute is not resolved through the in-court mediation, the case will be handed over to another judge for adjudication. There is full confidentiality of everything that has been said in the mediation, so the new judge who will decide the case does not receive any information on what the parties' positions have been in the mediation process.

The Dispute Act also has rules in Chapter 7 on out of court mediation, which the parties can agree to follow if they prefer. It is also possible for parties to have a private mediation without following the rules set out in the Dispute Act Chapter 7. There has been an increase in private mediations over the past few years, particularly in large construction disputes. The Norwegian Bar Association has recently established a certification programme for mediators.

Outlook and conclusions

The current Dispute Act entered into force in 2008. One of the main goals was to make the procedure for the handling of civil cases more effective, cost-efficient and proportional. The court was imposed with a stricter duty to be more hands on regarding the administration of each case also before the main hearing. In general, the Dispute Act has been well received. However, the Ministry of Justice has evaluated the effects of the Act and proposed some changes to make the Act even more efficient. The proposals were sent for public hearing in July 2018.44 Apart from the increase regarding dispute amount of claims, which have to be brought before the conciliation board and the small claims track in the ordinary courts (see Section III.ii), the Ministry of Justice is still evaluating the input from the hearing and it remains to see what changes will ultimately be proposed to Parliament.

From 2019, all correspondence between lawyers and the court in civil matters must be made in electronic format through the Aktørportalen web portal. In court proceedings before the ordinary courts, it is now common to have all documents in electronic format. This has to a certain extent enhanced the efficiency of the handling of civil cases.

Footnotes

1 Carl E Roberts and Fredrik Lilleaas Ellingsen are partners at Advokatfirmaet Selmer AS. Vemund Sande, a senior associate at Advokatfirmaet Selmer AS, has contributed to this year's update.

2 The number of district courts was considerably reduced, from 1 May 2021, from 60 to 23.

3 According to the Supreme Court's annual report for 2019, only 12.8 per cent of civil judgments appealed were admitted to hearing in the Supreme Court.

4 The EEA Agreement stands for the Agreement on the European Economic Area. This Agreement entered into force on 1 January 1994 and brings together the EU Member States and the three EEA EFTA states – Iceland, Liechtenstein and Norway – in a single market, referred to as the Internal Market.

5 For further information about what is included in the EEA Agreement and what is not, see for instance the homepage of EFTA: https://www.efta.int/eea/eea-agreement.

6 The Norwegian Constitution of 17 May 1814 Part E.

7 Act No. 30 of 21 May 1999.

8 HR-2020-2175-A.

9 C-47/18.

10 HR-2021-417-P.

11 No: Stortinget.

12 HR-2021-291-A.

13 Act No. 90 of 17 June 2005.

14 Act No. 5 of 13 August 1915.

15 Act No. 86 of 26 June 1992.

16 Act No. 58 of 8 June 1984.

17 A main hearing is usually held in all cases. Procedural matters are normally solved through a written submission.

18 Dispute Act Section 9-2.

19 The conciliation board is made up of laypersons.

20 The threshold was increased from 125,000 kroner to 200,000 kroner with effect from 1 July 2020.

21 ibid.

22 See the Dispute Act Section 8-1(1).

23 However, there is no formal sanction if the time limit is not met by the court.

24 Dispute Act Section 35-2.

25 Case reference LB-2017-34099 regarding the conditions for class action and LB-2018-43087 regarding substance.

26 Case reference HR-2020-475-A.

27 Case reference HR-2019-1198-A.

28 Guidance on service outside of the jurisdiction is given in the Ministry of Justice's Circular Letter G-04/2007 Section 2.

29 Treaty of 26 April 1974 between the Nordic countries regarding mutual legal assistance.

30 Regulation No. 1810 of 11 October 195 on Postal Service was amended in 2001 to allow for this.

31 Dispute Act Section 19-16(1).

32 Dispute Act Section 19-16(2).

33 Guidance on assistance to foreign courts is given in the Ministry of Justice's Circular Letter G-04/2007 Section 3.

34 Dispute Act Chapter 14.

35 Act No. 35 of 13 June 1980.

36 Regulation No. 1161 of 20 December 1996 to Act No. 5 of 13 August 1915. The Code of conduct rules are found in Chapter 12 of the Regulation.

37 The Fourth EU Directive was implemented into the EEA Agreement in December 2018.

38 Act No. 38 of 15 June 2018 on handling of personal data.

39 Dispute Act Section 21-4.

40 A more thorough review is given by Carl E Roberts and Norman Hansen Meyer in The International Arbitration Review, Norway chapter, 2021.

41 Norwegian Arbitration Act No. 25 of 14 May 2004.

42 NAA Section 39 Second Paragraph.

43 NAA Section 40 First Paragraph.

44 Hearing Letter from the Ministry of Justice of 12 July 2018 (Snr. 18/3837).

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