Legal Briefing

Litigation in Norway: traps and possibilities

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Global Outlook: Disputes | 02 October 2018

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There are many differences between UK and Norwegian litigation. In this article, we will give a brief outline of some of the possibilities in Norwegian litigation, as well as some issues that one needs to avoid. Since the language before the court is Norwegian, there is a need to seek out Norwegian counsel, but this article can in any case give some initial input as to what to consider when a dispute has connections to Norway.

The Norwegian Conciliation Board and lis pendens

In Norway there is a semi-court called the conciliation board, in which certain disputes need to be heard before it is possible to commence proceedings before the district courts. For instance, the dispute cannot be commenced directly before the district court if one of the parties has not been represented by an attorney. In international disputes, the obligatory conciliation board proceedings may represent a problem.

The Norwegian Supreme Court has stated that the lis pendens effect of the application for conciliation proceedings ceases when the conciliation board discontinues the case. The effect of being the court first seized, cf the Lugano Convention article 27, thus ceases when the conciliation board discontinues the case. In practical terms, this means that a foreign defendant may sue in another jurisdiction even after the obligatory Norwegian proceedings have been instigated, and still be the jurisdiction first seized. The effect is that the Norwegian proceedings will be dismissed.

The rule has been proposed to be changed in a hearing regarding the revision of the Norwegian Disputes Act, but no change has yet been adopted.

The international jurisdiction of Norwegian courts

Norway is a party to the Lugano Convention. For disputes covered by the convention, Norwegian courts will have jurisdiction as stated in the convention.

For disputes not covered by the Lugano Convention, or other conventions, Norwegian courts only have jurisdiction over the parties in international commercial disputes if a legal venue can be found in Norway pursuant to distinct venue provisions in Norwegian statutory law. The provisions generally coincide with the provisions of the Lugano Convention, but certain differences apply.

As a main rule jurisdiction in commercial disputes cannot be held merely by an assessment of what connection the dispute has to Norway. However, in exceptional cases Norwegian courts might have jurisdiction over a dispute with connection to Norway, even if no explicit grounds for jurisdiction can be found. Norwegian courts might also deny jurisdiction even if a legal venue can be found in Norway, if the dispute has a very weak connection to Norway, but no rule of forum non conveniens applies.

Securing of evidence

Normally the parties will present the evidence they have at hand to the court. A party might request the other party to present certain specified material to the court, but cannot request a party to present a vast and unspecified amount of material. There is no disclosure process. Furthermore, a decision from the court that a party should present certain material cannot be enforced against a party, but the court might rely on the reluctance in its consideration of the case. Witness testimony is given directly before the court, not in prior written witness statements. The testimony is not recorded. That implies that the court and counsel have to rely on notes and/or memory when deciding what the witness said and that the witness has to give testimony again if the case is appealed.

In exceptional cases Norwegian courts might have jurisdiction over a dispute with connection to Norway, even if no explicit grounds for jurisdiction can be found.

However, before initiating legal proceedings in Norway, Norwegian courts might grant a party the right to secure evidence to be used in the potential court hearing. An application is made to the court where the potential proceedings might be instigated, and the court should grant the application if there is a risk that the evidence otherwise might be lost or there are other special reasons why the evidence should be secured prior to the court hearing. The court decision will then be handed to the Norwegian enforcement office that will carry out the securing of evidence in accordance with any instructions in the court decision. Access to the secured material will normally be decided in a separate decision.

Preliminary injunctions and attachments

Norwegian courts might grant preliminary injunctions and/or attachments against defendants or assets in Norway, even if Norwegian courts do not have jurisdiction over the underlying claim.

As a main rule, the claimant needs to substantiate a claim against the defendant and a reason why it is necessary to secure the claim with a preliminary injunction or attachment that fulfils the statutory requirements. In special circumstances, the claimant might obtain a preliminary court order without substantiating a claim against the defendant.

Monetary claims are secured with a preliminary attachment of the debtor’s assets. Such attachment only prevents the debtor from disposing over the asset, and does not give any priority over non-voluntary enforcement in the relevant asset.

Non-monetary claims are secured with a preliminary court order forcing the defendant to tolerate, do or omit something in particular. In principle, the defendant might be forced to do, tolerate or omit anything, but there are certain limitations that apply, so the remedy requested should be carefully drafted.

Enforcement of foreign judgments

Norway is a party to the Lugano Convention 2007 and will enforce judgments from other countries party to the convention, in accordance with the regulations of the Lugano Convention. Judgments under the Lugano Convention are enforced by first submitting an application, to the local Norwegian court, to declare the judgment enforceable in Norway. The proceedings are ex parte, but the debtor to the judgment might appeal afterwards. Refusal to declare the judgment enforceable can only be based on the limited grounds stated in the Lugano Convention.

If there is no convention between Norway and the relevant country governing enforcement, Norway only accepts enforcement of foreign judgments if the parties have agreed to the jurisdiction of the relevant court. Such judgments are enforced by submitting an application for enforcement to the local Norwegian court. The proceedings are adversarial proceedings, but they are not fresh proceedings on the underlying claim. Enforcement will not be granted if enforcement would conflict with Norwegian law or would be contrary to Norwegian public policy.

Arbitral awards can be enforced even if there is no convention between Norway and the country in which the arbitration took place.

Other foreign judgments, where no convention nor consent to jurisdiction/arbitration exist, are not enforceable in Norway. If no convention or agreement is applicable, the case must be litigated anew in Norway. The foreign decision can be submitted as evidence, but is not decisive, and counterevidence as to fact and law may be presented. n

Simonsen Vogt Wiig is a leading commercial law firm in Norway, with 180 lawyers that provide assistance within all major business sectors. SVW has offices in the largest cities in Norway as well as an office in Singapore.