International Arbitration 2023 Comparisons

Among professional parties in Norway, arbitration is frequently used and is often the preferred dispute resolution method. Arbitration is the prevailing dispute resolution method in the reinsurance market and within the M&A sector in Norway, for example – as well as generally being preferred by parties to other large commercial agreements.

In Norway, three of the main reasons why parties choose to resolve disputes via arbitration are:

• the potential for a quicker dispute resolution process compared to the process offered by the Norwegian ordinary courts;
• the chance to influence the composition of the arbitral tribunal; and
• the opportunity for the process to be confidential.

Domestic parties, however, most frequently rely on ad hoc arbitration as prescribed by the Norwegian Arbitration Act of 14 May 2004 No 25 (the “Arbitration Act”) and less so on institutional arbitration proceedings. In Norway, the latter are offered by the Oslo Chamber of Commerce, for example.

International arbitration through foreign arbitration institutes is rarely agreed between domestic parties. Nevertheless, it is worth noting that it is not entirely uncommon that Swedish or Danish arbitrators are involved in purely Norwegian matters and vice versa. This is due to the similarities between the Scandinavian countries’ respective legal systems.

As regards matters in which either of the parties are located outside Norway, there is a tendency for parties to resort to international arbitration through one of the recognised arbitration institutes in Europe – for example, the Stockholm Chamber of Commerce (SCC) in Sweden or the ICC in Paris.

During and following the COVID-19 pandemic, the reinsurance industry has experienced an increase in the number of disputes referred to arbitration. As reinsurance is an international industry, this results in an increase in the number of international arbitration proceedings. Possible explanations for this continued trend include a tightening insurance market, together with international developments and disturbances that influence international trade. There has also been an increase in arbitration cases within the construction industry, especially where infrastructure contracts have been awarded with international suppliers on various levels.

The Arbitration Act is based on ad hoc arbitration and many international arbitrations are therefore not resolved under the auspices of a Norwegian arbitral institution. However, ad hoc arbitration in Norway is generally well administered and structured, and there is an emerging trend for employing the same standards, practices and templates as used in institutional arbitration.

International arbitrations that use an arbitral institution typically do so through the Arbitration and Alternative Dispute Resolution Institute of the Oslo Chamber of Commerce (OCC) or the Nordic Offshore and Maritime Arbitration Association (NOMA), which was established in 2017. NOMA Rules are based on the UNCITRAL Arbitration Rules and the NOMA Best Practice Guidelines are similar to those of international arbitration institutions. 

The national courts of Norway have no courts designated to hear disputes related to arbitrations, whether international or domestic.

Where the Arbitration Act grants competence to the ordinary courts (eg, in case the parties are unable to agree on an arbitral tribunal), the court that would have been competent in the absence of the arbitration agreement will be authorised to decide on the specific matter.

If no specific Norwegian court would have had authority in the absence of the arbitration agreement, Oslo District Court is responsible for deciding on the matter.

The Arbitration Act governs arbitration in Norway – both domestic and international arbitration.

The structure and content of the Arbitration Act is based on the UNCITRAL Model Law on International Commercial Arbitration (1985) (the “UNCITRAL Model Law”) – although there are some differences. These are in part due to the fact that the Arbitration Act governs both domestic and international arbitration proceedings.

Two key ways in which the Arbitration Act differs from the UNCITRAL Model Law are with regard to:

• the requirements of the arbitration agreement; and
• the confidentiality of proceedings.

In terms of the requirements of the arbitration agreement, it should be noted that the Arbitration Act does not require an arbitration agreement to be in writing. This may raise certain challenges if an award from a Norwegian arbitral tribunal – based on an oral arbitration agreement – is to be enforced in a country that requires arbitration agreements to be in writing.

As regards the confidentiality of the proceedings, please see 9.1 Extent of Confidentiality.

There have been no significant changes to the Arbitration Act in the past year and there is no pending legislation that may change the arbitration landscape in Norway.

There are no requirements concerning the form of the arbitration agreement pursuant to the Arbitration Act, apart from with regard to consumers. As such, even an oral arbitration agreement may be enforceable. On the other hand, the courts in Norway have been somewhat restrictive in determining that the parties have entered into an arbitration agreement. The Norwegian Supreme Court has based its reasoning on Article 6(1) of the European Convention of Human Rights Article 6, which requires that a waiver of the right of access to the courts must be voluntary and informed.

However, if it can be established that the parties have agreed to arbitrate a matter and arbitral proceedings are initiated, the ordinary courts are required to dismiss a case brought before them unless they find it clear that the arbitration agreement is invalid or cannot be carried out for other reasons.

Section 11 of the Arbitration Act governs the enforceability of arbitration agreements where one of the parties is a consumer. An arbitration agreement is not binding for a consumer if it was entered into prior to the dispute. Furthermore, the agreement must be in writing and in a separate document, signed by both parties.

It follows from Section 9 of the Arbitration Act that only legal matters that are subject to the parties’ unrestricted right of disposition may be determined by arbitration. In general, the parties’ unrestricted right of disposition follows the lines of what parties may agree upon in a contract. A matter relating to children’s rights is one typical example of a matter that cannot be referred to arbitration between private parties.

The question of whether the parties have an unrestricted right of disposition can sometimes be subject to doubt and, as such, the arbitrability of a legal matter must be decided on a case-by-case basis. For instance, a dispute between a limited liability company and one of its shareholders regarding the validity of a General Assembly decision is deemed in legal theory not to be arbitrable.

Another example of a matter not subject to the parties’ right of disposition is the validity of private rights that have been achieved by public decision, such as patents or trade marks. Furthermore, Chapter 17 of the Working Environment Act contains provisions for civil procedure that preclude labour matters from arbitration – with the exception of cases brought by or against the highest-ranking officer of a company.

Matters of competition law are not necessarily subject to the parties’ unrestricted right of disposition. However, it follows from Section 10 of the Arbitration Act that matters concerning the private law effects of competition law are arbitrable.

Pursuant to Section 18 of the Arbitration Act, it is the arbitration tribunal that decides whether the case is arbitrable. Nonetheless, a decision that the tribunal is competent to hear the case may be brought before national courts within a month. Furthermore, pursuant to Sections 43 and 44 of the Arbitration Act, a ruling by the tribunal may be held invalid by the national courts on the grounds that the case was not arbitrable.

The question of arbitrability where third parties are involved was raised in a case before the Norwegian Supreme Court earlier in 2023. In Norway, contracts are generally only binding on the parties to the contract (see 5.7 Jurisdiction Over Third Parties and 13.5 Binding of Third Parties for further details). In the case of HR-2023-573-A, an insurance company had covered a boat association’s loss following the total destruction of a wave breaker. The insurance company raised a recourse claim against the supplier of the wave breaker. The supplier alleged that the claim should be rejected, with reference to an arbitration clause in the contract between the boat association and the supplier. The Supreme Court concluded that the arbitration clause was binding for the insurance company. It was assumed that the term “assignment” in Section 10 of the Arbitration Act also includes transfer by recourse according to non-statutory rules. The case was therefore arbitrable and rejected by the ordinary courts.

In terms of determining which country’s law governs the arbitration agreement, the courts are bound by the parties’ choice of law. For the sake of clarity, it should be noted that the Arbitration Act is based on the principle of separability; therefore, the arbitration agreement may be governed by a choice of law other than the law governing the substantive contract.

Under Section 31 of the Arbitration Act, a reference to the laws of a state is presumed to be a reference to the substantive laws of that state and not the state’s conflict of law rules.

When determining whether the national courts are precluded from hearing a case because of an arbitration clause, the courts apply Norwegian law as a main rule. However, the courts take into consideration whether the solution prescribed by Norwegian law harmonises with the laws of the state governing the arbitration agreement. Particular consideration is given to the law governing the arbitration agreement when determining the arbitrability of a matter and the validity of arbitration clauses – see, for instance, HR-2017-1932-A.

For the national courts’ approach to the enforcement of arbitration agreements, see 3.1 Enforceability.

Notwithstanding the strict evaluation of whether an arbitration agreement has been entered into, arbitration agreements are very rarely found invalid. This is owing to the strict criteria for voiding agreements in Norwegian contract law.

As mentioned in 3.3 National Courts’ Approach, it follows from Section 18 of the Arbitration Act – wherein the rule of separability is enshrined – that the validity of an arbitral clause is not dependent on the validity of the contract as such. Thus, the arbitral tribunal maintains its competence even if it finds the contract to be invalid.

In accordance with Section 13 of the Arbitration Act, the only limit on the parties’ freedom to select arbitrators is that the arbitrators must be impartial and independent of the parties and qualified for the task. However, these are not mandatory requirements and the parties are free to agree otherwise. The parties are also free to stipulate specific requirements for the tribunal in the arbitration agreement.

The starting point, pursuant to Section 13 of the Arbitration Act, is that the parties must appoint the arbitrators jointly.

If the arbitral tribunal comprises three arbitrators and the parties fail to agree on the composition of the tribunal, each party will appoint one arbitrator. These two arbitrators will then jointly appoint the third arbitrator to be the presiding arbitrator.

If the arbitral tribunal cannot be established pursuant to the above-mentioned procedure, each of the parties may request that the ordinary court with jurisdiction decides on the appointment(s). The decision on appointment passed by the ordinary court is not subject to any appeal.

The ordinary court(s) can only intervene in the arbitrator selection process if such intervention is requested by one of the parties and authorised pursuant to the Arbitration Act (see 4.2 Default Procedures).

A party may also, in certain cases, request that the ordinary court rules on whether there are grounds for asking an appointed arbitrator to step down from the tribunal owing to objections raised (see paragraph 2 of Section 15 of the Arbitration Act Section 15). In such case, the decision made by the ordinary court is not subject to appeal.

In accordance with Section 14 of the Arbitration Act, an arbitrator may only be challenged if:

• there are circumstances that give rise to justifiable doubts about the arbitrator’s impartiality or independence; or
• the arbitrator does not possess the qualifications agreed between the parties in the arbitration agreement.

The arbitrator is obliged to disclose any circumstances likely to give rise to such justifiable doubts from the point at which they are approached with regard to a possible appointment as arbitrator. The same obligation will be in place throughout the arbitral proceedings so that the arbitrator is always under the duty to convey such information to the parties.

Unless the parties have agreed otherwise, a challenge against an arbitrator must state the factual reasons for the challenge and be submitted in writing to the arbitral tribunal within 15 days once the party has become aware of both the appointment of the arbitrator and the circumstances on which the challenge is based. Unless the challenged arbitrator voluntarily withdraws from their appointment or the other party agrees to the challenge, the arbitral tribunal will make a decision on whether there is basis for the challenge or not.

If a challenge is unsuccessful, the challenging party may bring this issue to the ordinary court, unless the parties have agreed to another procedure.

Pursuant to Section 13 of the Arbitration Act, the arbitrators are required to be impartial and independent of the parties and qualified for the role as arbitrator. As mentioned in 4.1 Limits on Selection, this is not a mandatory requirement and the parties are free to agree otherwise.

The Arbitration Act does not include a definition of “impartial and independent”. This must be assessed in each individual case. Section 108 of the Courts of Justice Act, which applies to all ordinary courts, sets out some provisions regarding legal capacity for judges in the ordinary courts that – even though it is not directly applicable – can provide some guidance for this assessment. Also the International Bar Association’s Guidelines on Conflicts of Interest in International Arbitration may provide some guidance for determining whether an arbitrator is “impartial and independent”.

The requirement regarding the arbitrators’ qualifications must also be assessed individually in each case, based on the parties’ agreement and the specific facts. If the parties have agreed on any specific requirements regarding experience or knowledge, this would of course be relevant (if not decisive) in the assessment.

As stated in 4.4 Challenge and Removal of Arbitrators, a candidate approached for possible appointment as arbitrator is under a constant duty to disclose any circumstances likely to give rise to justifiable doubts as to their impartiality or independence – as are appointed arbitrators.

As stated in 3.2 Arbitrability, only legal matters that are subject to the parties’ unrestricted right of disposition may be determined by arbitration and the parties’ unrestricted right of disposition will normally correspond with what the parties are permitted to agree upon in a contract. As a general rule, the national courts have exclusive jurisdiction over fields of law traditionally concerned with public policies – for example, family law and criminal law. It should also be mentioned that Section 11 of the Arbitration Act provides a large degree of consumer protection and, inter alia, states that an arbitration agreement entered into prior to the dispute arising will not be binding on the consumer.

Challenges to the tribunal’s jurisdiction, including any objections as to the existence or validity of the arbitration agreement, are decided by the arbitral tribunal in accordance with Section 18 of the Arbitration Act. The arbitral tribunal may rule on an objection as to whether it has jurisdiction over the case, either during the arbitral proceedings or in the arbitral award determining the dispute.

As a general rule, if a party wishes to raise the objection that the arbitral tribunal does not have jurisdiction over the case or the claim, such objection must be raised no later than in the parties’ submission of the first statement on the merits of the case.

If the arbitral tribunal rules that it has jurisdiction during the arbitral proceedings, any party may bring the issue before the ordinary courts, which will determine such issue by way of an interlocutory order (see paragraph 4 of Section 18 of the Arbitration Act).

As stated in 5.2 Challenges to Jurisdiction, the ordinary courts can determine whether an arbitrational panel has jurisdiction if a party brings the issue before the courts once a decision from the arbitral tribunal – ruling that the arbitral tribunal has jurisdiction – has been passed.

In accordance with paragraph 2 (litra c) of Section 43 of the Arbitration Act, the ordinary courts may also set aside an arbitral award if the arbitral award is beyond the scope of the jurisdiction of the arbitral tribunal.

The party may bring a legal action for setting aside the arbitral award before the ordinary courts – provided the courts have not already decided on the arbitral tribunal’s jurisdiction in the particular case, pursuant to Section 18 of the Arbitration Act, at an earlier phase of the arbitral proceedings.

If the arbitral award falls outside the scope of the jurisdiction of the arbitral tribunal, the ordinary courts may also refuse to recognise or enforce the award in accordance with Section 46 of the Arbitration Act.

A party must bring the challenge to the jurisdiction of the arbitral tribunal before the ordinary courts within one month following a ruling from the tribunal deciding that the tribunal has jurisdiction (see 5.2 Challenges to Jurisdiction).

If the jurisdiction of the arbitral tribunal is not challenged during the arbitral procedure, the parties can bring a legal action for setting aside the arbitral award before the ordinary courts within three months of receiving the arbitral award (see 5.3 Circumstances for Court Intervention).

During the judicial review, the ordinary courts will generally make a full and independent assessment of the relevant facts and of the applicable legal sources, based on the grounds invoked by the parties.

If a party commences court proceedings in the ordinary courts in breach of an arbitration agreement before the arbitration proceedings are initiated, the ordinary courts are obliged to dismiss the case pursuant to Section 7 of the Arbitration Act – provided that the other party requests dismissal no later than when addressing the merits of the case.

As stated in 3.1 Enforceability, the courts are required to dismiss a case brought before them unless it is found to be clear that the arbitration agreement is invalid or cannot be carried out for other reasons in cases where arbitral proceedings are already initiated.

Case law dictates that the evaluation of whether the parties have entered into an arbitration agreement must be restrictive. However, if the courts find that the parties have entered into an arbitration agreement, such agreements are only found to be invalid in exceptional cases. As explained in 3.3. National Courts’ Approach, this is down to the general strict criteria according to which contract provisions are found void under Norwegian contract law.

As stated in 13.5 Binding of Third Parties and 3.2 Arbitrability, the general principle under Norwegian law is that a contract is only binding for the parties to the contract. Hence, a third party is not bound by an arbitration agreement or an award issued pursuant to this agreement when this third party has not entered into the agreement or otherwise has not accepted to be bound by the agreement.

However, according to Section 10 of the Arbitration Act, the arbitration agreement is deemed to be assigned together with any assignment of the legal relationship to which the arbitration agreement relates – unless otherwise agreed between the parties. It was decided by the Supreme Court of Norway in HR-2023-573-A that the term “assignment” in Section 10 of the Arbitration Act also includes transfer by recourse according to non-statutory rules (see 3.2 Arbitrability).

Unless the parties have agreed otherwise, the arbitral tribunal may – at the request of a party – order any party to undertake such interim measures as the tribunal considers necessary based on the subject matter of the dispute, pursuant to Section 19 of the Arbitration Act.

An interim relief ordered by the arbitral tribunal is binding upon the parties – albeit not enforceable according to Norwegian law, as neither the Norwegian Enforcement Act of 26 June 1992 (No 86) nor Chapter 10 of the Arbitration Act contain provisions for this. In practice, most parties will adhere to an arbitral tribunal’s order for interim relief out of respect for the authority of the arbitral tribunal.

The parties may also pursue a claim for interim relief in the ordinary Norwegian courts pursuant to Section 8 of the Arbitration Act. Interim relief may also be sought in foreign-seated arbitrations (see paragraph 2 of Section 1 of the Arbitration Act Section 1). The Norwegian rules on interim measures give the courts a considerable amount of flexibility to grant an arrest warrant or to issue orders that either prevent a party from performing certain actions or compel a party to perform certain actions.

The Arbitration Act does not contain any provisions regarding emergency arbitrators – stating instead that it depends on the parties’ agreement. Emergency arbitrators are not common in Norwegian arbitrations.

According to Section 41 of the Arbitration Act, the arbitral tribunal may order the parties to provide security for the costs of the arbitral tribunal, unless the parties and the arbitral tribunal have agreed otherwise. The arbitral tribunal may terminate the arbitral proceedings if such security is not provided. If a party fails to provide security as ordered, the other party may provide the security in full or bring the dispute before the ordinary courts, unless the parties have agreed otherwise.

Sections 20–30 of Chapter 6 of the Arbitration Act sets out detailed provisions governing the procedure for the arbitration. In the absence of agreement between the parties, the provisions outlined in Chapter 6 will apply. It should also be noted that it is explicitly stated in some of the provisions contained in Chapter 6 that these may not (fully or partly) be exempted from by agreement. The arbitration agreement between the parties may state that arbitral proceedings are to be filed at a specific institution – in which case, the rules of the institution will govern the procedure for the arbitration and supplement the provisions of the Arbitration Act and possibly overrule the provisions from which there can be exemptions.

Section 22 regulates the legal venue where the arbitration takes place. This location is decided by the tribunal if not agreed by the parties. Normally, the legal venue and choice of law are agreed upon in the arbitration clause within the contract subject to dispute.

Unless otherwise agreed, the arbitration commences when a written request for arbitration is received by the respondent (see Section 23). The Arbitration Act does not set out any explicit requirements with regard to the content of the notice. A letter clearly notifying the respondent that arbitration is requested for a specific dispute is sufficient.

As regards the language of the arbitration (including the pleadings, hearing and judgment, as well as communication from the tribunal), Section 24 states that this is decided by the tribunal unless otherwise agreed by the parties. Section 24 further states that the tribunal can require written evidence to be translated into the agreed language of the arbitration.

Section 25 sets forth the requirements for the filing of a statement of claim by the claimant and for filing a reply from the respondent. Pursuant to the final paragraph of Section 25 and unless they have agreed otherwise, the parties have wide rights to:

• bring new claims;
• expand the contention in respect of existing claims; and
• submit new grounds for the contention and new evidence.

Among other things, Section 27 provides for the regulation of the consequences of:

• failure by the claimant to submit a statement of claim;
• failure by the respondent to file a reply according to Section 25; and
• absence from hearings.

Depending on the non-fulfilment, the tribunal will have specific powers under Section 27 to pass decisions, unless otherwise agreed. Specifically, if the claimant fails to provide a statement of claim, the arbitral tribunal will dismiss the case. If the respondent fails to file a reply, the case will continue and the failure will not be construed as an acceptance of the claims. If a party is absent from the hearings without reasonable grounds, the tribunal can continue the case and hand down its verdict on the factual basis that it has been presented with.

Section 26 of the Arbitration Act relates to the question of whether hearings shall be conducted. Unless the parties have agreed otherwise, the tribunal will decide whether an oral hearing shall be conducted; however, a party may always request an oral hearing.

The general procedural steps are set out in 7.1 Governing Rules. As stated therein, most of the provisions set out in Chapter 6 of the Arbitration Act are non-mandatory – although the principle of equal treatment must be complied with. Also note that Section 30 contains a provision allowing assistance from the ordinary courts to obtain witness statements, taking evidence, etc. In the event the parties have not agreed to authorise the tribunal to pass legally binding decisions on document requests, there is not sufficient basis under the Arbitration Act to force a party to disclose documents. Hence, there might be a need to seek assistance from the ordinary courts to resolve this.

Pursuant to Section 20 of the Arbitration Act, the arbitration tribunal must at all stages of the arbitral proceedings treat each party equally and each party must be given full opportunity to present its case. The principle of equal treatment has general bearing and applies to all steps of the proceedings and cannot be exempted from.

Furthermore, pursuant to Section 21 of the Arbitration Act, the tribunal has discretionary power to determine how the arbitration proceedings are conducted. The exercise of this discretion will be subject to the limitations set out in the agreement between the parties and under the Arbitration Act.

When it comes to arbitral proceedings, there are no statutory provisions in the Arbitration Act outlining particular qualifications or other requirements for the legal representatives. A party can decide not to appoint legal counsel – although this is not generally recommended.

However, there are legal requirements for representatives acting on behalf of a client and before the regular courts in Norway set out in Section 3-3 of the Norwegian Act relating to mediation and procedure in civil disputes (the “Dispute Act”). The main rule is that the legal representative must be a lawyer qualified to appear in the national courts.

The general rule on evidence is set out in Section 28 of the Arbitration Act, which states that the parties are responsible for substantiating the case and entitled to present such evidence as they wish.

Usually, the witnesses meet directly before the arbitral tribunal and are available for cross-examination. If requested by a party or the arbitral tribunal, an expert who has submitted a written report is obliged to attend the oral hearing where the parties have the opportunity to ask questions and present expert witnesses who testify on the points at issue (see Section 29 of the Arbitration Act).

The arbitral tribunal, or a party with the consent of the arbitral tribunal, may also ask the domestic courts to take testimony from the parties or witnesses and to record other evidence (see Section 30 of the Arbitration Act). The arbitrators are entitled to be present and to ask questions during the taking of evidence. In such instances, the relevant party or witness is obliged to meet before the court subject to the provisions in the Dispute Act.

The Arbitration Act does not contain any rules on discovery, disclosure or privilege. However, it has become increasingly more common for the parties to include provisions concerning these aspects in the arbitration agreement.

Please see 8.1 Collection and Submission of Evidence.

The rules of evidence in the Arbitration Act are less detailed than the rules of evidence in the Dispute Act, which apply in domestic matters. However, the parties are free to agree on more specific rules of evidence in each case.

As mentioned in 7.2 Procedural Steps, the Arbitration Act does not contain any provisions that authorise the arbitral tribunal to force a party to disclose documents and the same applies in relation to the attendance of witnesses.

However, as mentioned in 8.1 Collection and Submission of Evidence, the arbitrators may ask the court for assistance to hear statements from the parties or witnesses or to record other evidence. In such instances, the more detailed rules in the Dispute Act will apply to the hearing of evidence – for example, those that oblige anyone (ie, both the parties and third parties) to provide relevant information and documentation available to them.

Section 5 of the Arbitration Act states that the arbitral proceedings and any resulting awards are not confidential unless the parties to the dispute in question agree otherwise. Consequently, an agreement regarding confidentiality must be entered into after the dispute has arisen. In such instances, the parties may agree that the whole or parts of the proceedings will be subject to confidentiality. However, in practice, this rule has not led to arbitral awards being more public in Norway compared to other jurisdictions.

Even in the absence of such agreement, third parties may only attend the arbitral proceedings if so agreed by the parties to the dispute.

If the parties have agreed on confidentiality, the main rule is that the information cannot be disclosed in subsequent proceedings. However, there is an important exemption, whereby a party is obliged by law to present the relevant documentation or information. As a rule, this will be the case in proceedings before the regular courts if the information is considered to constitute evidence in the proceedings – see Section 21-5 of the Dispute Act, which sets out that “[a]ll persons have a duty to testify about factual circumstances and to grant access to objects etc. that may constitute evidence in legal proceedings, subject to the limitations in the rules on prohibited and exempted evidence in Chapter 22 and other provisions on evidence in this Act”.

The above-mentioned provision will also apply to subsequent arbitral proceedings in instances where the arbitrators seek assistance from the courts to obtain evidence, as mentioned in 8.3 Powers of Compulsion.

The arbitral award must be made in writing and signed by all arbitrators (see Section 36 of the Arbitration Act). In arbitral proceedings with more than one arbitrator, the signatures of the majority of the members of the arbitral tribunal will suffice – provided that the reason for any omitted signature is stated in the award.

Furthermore, the award must state the reasons on which it is based, unless it is an award on agreed terms. Pursuant to Section 35, the arbitral tribunal must – at the parties’ request – record the settlement in an award on agreed terms, unless the court has reason to object to it. The award must also state whether it is unanimous. If it is not unanimous, the award must state who is in dissent and to which issues the dissent relates. The award must also state its date and the place of arbitration.

The Arbitration Act does not contain any provisions on time limits for delivery of the award.

There are no general limitations in law as to the types of remedies that an arbitral tribunal may award. The remedy awarded must, however, fall within the scope of the claims of the parties.

The arbitral tribunal shall, at the request of a party, allocate the costs of the arbitral tribunal between the parties as it sees fit (see Section 40 of the Arbitration Act). The arbitral tribunal may, at the request from a party, order one of the parties to pay all or part of the costs of the other party. This will typically be relevant if one of the parties is successful in the claim – be it fully or in the main.

The allocation of costs by the arbitral tribunal is final and will be included in the award or in the order terminating the case.

The parties may also agree between them how the costs will be allocated – eg, that the parties must carry their own costs irrespective of the outcome of the case.

Arbitral awards are not subject to appeal. However, an action for invalidity may be brought before the ordinary courts on the grounds set out in Section 43 of the Arbitration Act, which sets out that an award may only be set aside by the courts if:

• one of the parties to the arbitration agreement lacked legal capacity;
• the arbitration agreement is invalid under the governing law agreed upon by the parties (or, failing such choice of law, under Norwegian law);
• the award falls outside the jurisdiction of the arbitral tribunal;
• the composition of the arbitral tribunal was incorrect;
• the arbitral procedure was contrary to law or the agreement of the parties, and it is likely that this has had an impact on the decision; or
• the party bringing the action to set aside the arbitral award was not given:
• proper notice of the arbitral proceedings or the appointment of an arbitrator; or
• an opportunity to present their views on the case.

If the issue of validity of an award has been brought before the ordinary courts, the court shall on its own initiative also set aside the award if:

• the dispute is not capable of settlement by arbitration under Norwegian law; or
• the award is considered to be contrary to public policy (ordre public).

If the grounds for invalidity affect only parts of the award, only these parts will be deemed to be invalid.

As mentioned in 5.4 Timing of Challenge, an action to set aside an award must be brought within three months after the award was received by the party (see Section 44 of the Arbitration Act).

If an action for invalidity has been brought and there are grounds for setting aside the award, the court may – at the request of a party – adjourn the action to set aside and refer the case back to the arbitral tribunal to continue the proceedings and make a new award if this may obviate the grounds for setting aside.

When an award is set aside, the arbitration agreement will become effective again, unless otherwise agreed between the parties or implied by the judgment setting aside the award.

Under Norwegian law, the parties may not agree to exclude or expand the scope of appeal or challenge. For further details, please refer to 11.1 Grounds for Appeal.

The court may only set aside the case as invalid based on the grounds detailed in 11.1 Grounds for Appeal.

Norway is party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”), with the following reservations:

• Norway will apply the New York Convention only to the recognition and enforcement of awards made in the territory of one of the contracting states; and
• Norway will not apply the Convention to disputes where the subject matter of the proceedings is immovable property situated in Norway, or a right in or to such property.

The matters of recognition and enforcement of awards are regulated in Sections 45 and 46 of Chapter 10 of the Arbitration Act. The parties cannot derogate from the applicability of these rules by agreement.

It is set out in Section 46 that the recognition and enforcement of an arbitral award may only be refused if:

• one of the parties to the arbitration agreement lacked legal capacity;
• the arbitration agreement is invalid under the law to which the parties have agreed to subject it (or, failing such agreement, under the law of the country where the award was made);
• the party against whom the award is invoked was not given:
1. proper notice of the arbitral proceedings or the appointment of an arbitrator; or
2. an opportunity to present their views on the case;
• the award falls outside the jurisdiction of the arbitral tribunal;
• the composition of the arbitral tribunal was unlawful;
• the arbitral procedure was contrary to the law of the place of arbitration or the agreement of the parties and it is likely that this has had an impact on the decision; or
• the award is not yet binding on the parties or has been permanently or temporarily set aside by:
1. a court at the place of arbitration; or
2. a court of the country under the law of which the merits of the dispute has been determined.

This means that, as a general rule, arbitral awards from countries that are not participants to the New York Convention (and with which Norway has not entered into separate agreements) will also be recognised and enforced.

The court will, of its own accord, refuse recognition and enforcement of an award if:

• the dispute could not have been determined by arbitration under Norwegian law; or
• recognition or enforcement of the award would be contrary to public policy (ordre public).

If the reason for refusing recognition or enforcement affects only part of the award, the court shall only refuse recognition or enforcement of such part.

Enforcement must take place pursuant to the provisions of the Enforcement Act, except as provided by Chapter 10 of the Arbitration Act (see Section 45 of the Enforcement Act).

The enforcement process is initiated by the claimant filing a petition for enforcement to the execution and enforcement commissioner. The application must include the information set out in Section 5-2 of the Enforcement Act. If the basis for enforcement is a foreign arbitral award, the claimant must also attach documentation to show that the award is enforceable in the relevant foreign jurisdiction. Recognition and enforcement of an award is dependent on a party providing the original award or a certified copy thereof. If the award is not made in Norwegian, Swedish, Danish or English, the party must also provide a certified translation thereof. The court can require documentary proof of the existence of an agreement or other basis for arbitration (see Section 45 of the Arbitration Act).

The execution and enforcement commissioner must, on their own initiative, ensure that:

• they are competent to handle the case;
• the parties have capacity to sue and be sued; and
• there exists a valid basis for enforcement.

Besides this, the parties are responsible for clarifying and presenting relevant facts and documentation that may affect the decision of the execution and enforcement commissioner in the matter (see Section 5-3 of the Enforcement Act).

The New York Convention is implemented in Norwegian law via the Arbitration Act.

Pursuant to the Arbitration Act, arbitral awards – irrespective of the country in which they were made – are recognised and enforceable under Norwegian law subject to exhaustively listed exemptions (see 12.2 Enforcement Procedure).

The Arbitration Act does not contain provisions allowing class action arbitration or group arbitration. In general, the agreement between the parties will be the determining factor. It is possible to consolidate claims between the same parties or include more parties to the same arbitration process, provided this is agreed upon or such claims and parties are included and presented to the arbitral tribunal without challenge.

Norwegian qualified lawyers acting as legal counsels in arbitrations must act in accordance with the ethical codes generally applicable to lawyers. These ethical rules are set out in the code of conduct for Norwegian lawyers and laid down in regulations under the Courts of Justice Act.

There are no general rules or restrictions on third-party funding in the Arbitration Act or under Norwegian law. It is rare in Norway for third parties to fund litigation in return for a share of the possible outcome of the case. That being said, a party to an arbitration is free to agree to such funding and sharing of the potential outcome.

There is no basis under the Arbitration Act for the tribunal to decide that separate arbitration proceedings will be consolidated into one case. There are consolidation rules under the Dispute Act but these do not apply under the Arbitration Act unless agreed by the parties. Hence, a consolidation will require an agreement between all parties involved – ie, that there is one agreement that covers all claims and parties subject to the consolidated disputes.

As stated in 7.1 Governing Rules, the final paragraph of Section 25 of the Arbitration Act provides for a wide right to bring new claims into the arbitration – although this presupposes that the parties and the claims initially are subject to the same arbitration proceeding. Article 25 does not provide the basis to expand the case to new parties.

As mentioned in 5.7 Jurisdiction Over Third Parties, the general principle under Norwegian law (which is in line with the doctrine of privity) is that a contract cannot confer rights or impose obligations upon any person who is not a party to the contract and correspondingly only parties to the contracts are able to sue or seek enforcement of their rights or claim for damages as such. Hence, a third party is not bound by an arbitration agreement or an award issued pursuant to this agreement – provided that this third party has not signed the agreement or otherwise accepted to be bound by it.

In principle, in the case of succession (ie, change of control of a legal person or assignments of contractual obligations), a third party may also succeed in an arbitration clause if it has been agreed by the predecessor. However, this is also based on contractual commitment. As mentioned in 3.2 Arbitrability and 5.7 Jurisdiction Over Third Parties, it was decided by the Supreme Court of Norway in HR-2023-573-A that the term “assignment” in Section 10 of the Arbitration Act also includes transfer by recourse according to non-statutory rules. If it is disputed whether a third party is a party to an arbitration agreement or not, the matter may be referred to the regular court for settlement.