Norway - National Report - World Arbitration Reporter (WAR) - 2nd Edition
Anders Ryssdal is a partner in the law-firm Wiersholm in Oslo, www.wiersholm.no. Holding more than 15 years of general experience in corporate litigations and domestic and international arbitration, he heads its International Arbitration Practice Group. He is a member of the ICC International Court of Arbitration.
Kristian S. Myrbakk is a senior lawyer in Wiersholm. He works primarily with public procurement, state aid, IPR related issues and arbitration.
Originally from World Arbitration Reporter (WAR) - 2nd Edition
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I. INTRODUCTION: ARBITRATION IN NORWAY— INFRASTRUCTURE
A. History and Current Legislation on Arbitration
1. Historical evolution of law relating to arbitration
Until 2004, arbitration in Norway was governed by Chapter 32 of the Norwegian Civil Procedure Act of 1915. These rules did not provide detailed guidance as to the conduct of arbitration procedures. Thus, the development of arbitration took place in practice. However, when the civil procedure legislation was revised in the 1990s, it was acknowledged that arbitration ought to be governed by a separate Act.1
The Norwegian Arbitration Act of 14 May 2004 (the Arbitration Act) entered into force on 1 January 2005.2 The Act applies to both domestic and international arbitrations. Unless explicitly stated, the provisions of the Act are mandatory. The application of the Act is subject to the unwritten principle of party autonomy.
The Arbitration Act implemented the UNCITRAL Model Law (the Model Law) for almost all purposes. It follows from the preparatory works of the Act, that compliance with the requirements of the Model Law was an important consideration in the legislature. The result was that the structure of the Act corresponds, with very few exceptions, to the structure of the Model Law as per 2004.
Subsequent changes in the Model Law have not yet been adapted. The Act is currently for all practical purposes the same as when it was enacted. The only amendments made so far, consist of amended references reflecting the adoption of the new Dispute Act of 2005. Despite this discrepancy, the Act should nevertheless be considered as a Model Law. The further consequences of this are further discussed below.
I. INTRODUCTION: ARBITRATION IN NORWAY–INFRASTRUCTURE
A. History and Current Legislation on Arbitration
1. Historical evolution of law relating to arbitration
2. Current law
a) Domestic arbitration law
b) International arbitration law
3. Law reform projects
4. Confidentiality and publication of awards
a) Privacy of proceedings
b) Publication of the award
B. Arbitration Infrastructure and Practice in Norway
1. Major arbitration institutions
2. Number of cases and other statistics
3. Development of arbitration compared with litigation
II. CURRENT LAW AND PRACTICE
A. Arbitration Agreement
1. Types and validity of agreement
a) Clauses and submission agreements
b) Minimum essential content
c) Form requirements
d) Incorporation by reference
e) Interpretation
2. Enforcing arbitration agreements
a) Declaratory actions in court
b) Applications to compel or stay arbitration
c) Anti-suit and other injunctions
3. Effects on third parties
a) Extension of the agreement over third parties
b) Other effects
4. Termination and breach
B. Doctrine of Separability
C. Jurisdiction
1. Competence-Competence
2. Interaction of national courts and tribunals
D. Arbitrability
1. Subjective Arbitrability
a) Natural persons
b) Legal persons
c) States and state entities
d) Objective Arbitrability
E. Arbitral Tribunal
1. Status and qualifications of arbitrators
a) Number of arbitrators
b) Legal status
c) Qualifications and accreditation requirements
d) Arbitrators’ rights and duties
e) Relevant codes of ethics
2. Appointment of arbitrators
a) Methods of appointment
b) Appointing authorities
c) Payment agreements
d) Resignation and its consequences
3. Challenge and removal
a) Grounds for challenge
b) Procedure for challenge
c) Removal procedure
d) Replacement of arbitrators
e) Arbitrator liability and immunity
F. Conducting the Arbitration
1. Law governing procedure
a) Determination of law and rules governing procedure
b) Notion and role of seat of arbitration
c) Methods for selection of seat when absent party choice
d) Mandatory rules of procedure
2. Conduct of arbitration
a) Party autonomy and arbitrators’ power to determine procedure
b) Style and characteristics of the oral hearing
c) Submissions and notifications
d) Legal representation
e) Default proceedings
3. Taking of evidence
a) Admissibility
b) Burden of proof
c) Standards of proof
d) Documentary evidence and privilege
e) Production of documents
f) Witnesses
g) Experts
4. Interim measures of protection
a) Jurisdiction for granting interim measures
b) Availability of preliminary or ex parte orders
c) Types of measures
d) Form of measures
e) Security for costs
f) Enforcement mechanisms
5. Interaction between national courts and arbitration tribunals
a) Court assistance before the arbitration begins
b) Court assistance during the arbitration
c) Court assistance after the arbitration
d) Case law examples of best and worst practices
6. Multiparty, multi-action and multi-contract Arbitration
a) Consolidation of arbitrations
b) Joinder of third parties
c) Parallel and concurrent proceedings
7. Law and rules of law applicable to the merits
a) Determining the applicable law and rules
b) Party autonomy
c) Determination by arbitrators
d) Non-national substantive rules, general principles
of law and transnational rules
e) Mandatory rules
8. Costs
a) General allocation of the costs of the proceedings
b) Legal costs
c) Security for costs
d) Arbitrators’ fees: law and practice, judicial control
G. Arbitration Award
1. Types of award
a) Partial awards
b) Final awards
c) Interim awards
d) Consent awards
e) Default awards
f) Awards and other decisions of the tribunal
2. Form requirements
a) Essential content
b) Reasons
c) Time limits for making award
d) Notification to parties and registration
3. Remedies
a) Damages
b) Specific performance
c) Other typical remedies
d) Interest
4. Decision making
a) Deliberations
b) Majority or consensus
c) Dissenting or concurring opinions
5. Settlement
a) Settlement recorded in an award
b) Settlement without an award
c) Use of settlement techniques by arbitrators
6. Effects of award
a) Effects between parties
b) Effects against third parties
c) Res judicata
7. Correction, supplementation, and amendment
a) Correcting the award
b) Additional awards
c) Interpretation of awards
H. Challenge and Other Actions against the Award
1. Setting aside the award
a) Grounds
b) Time limits
c) Procedure
d) Limiting judicial review of awards by
contract
e) Effects of successful challenge
2. Appeal on the merits
a) Is it allowed?
b) Grounds
c) Excluding the right to appeal by agreement
III. RECOGNITION AND ENFORCEMENT OF AWARDS
A. Foreign Awards
1. Various regulatory regimes
a) Domestic rules
b) New York Convention
c) Other international conventions
d) Court practice applying regimes other than the New York Convention
2. Distinction between recognition and Enforcement
3. Application of New York Convention by local courts
a) Grounds for refusing recognition and enforcement
b) Enforcement procedure
c) Public policy as a ground to refuse enforcement
d) Examples from practice
IV. APPENDICES AND RELEVANT INSTRUMENTS
A. National Legislation
B. Major Arbitration Institutions
C. Cases
D. Bibliography