Insurance & Reinsurance 2021

Last Updated January 19, 2021

Norway

Law and Practice

Authors



Kvale Advokatfirma DA is a business law firm dating back to 1985. Throughout the years, Kvale has shown consistent organic growth and today is comprised of 94 lawyers. Kvale advises on most aspects of business law and is an acknowledged specialist in a number of practice areas. The firm’s growth is driven by its pursuit of quality combined with a keen attention to its clients’ businesses. Kvale’s clients appreciate this, whether they are small- or medium-sized businesses or large national and international corporations. Main areas of practice are oil and gas/offshore construction, corporate and M&A, dispute resolution and TMT/IP, as well as respected boutique practices within renewable energy, competition law, employment law, tax and shipping. Kvale is active within dispute resolution across all the aforementioned fields and is consistently involved in very major complex arbitration and litigation cases.

Norway is neither a pure civil-law nor a common-law system, but rather falls in between these systems, as do the other Scandinavian countries. Having said that, the most important source of law is legislation, and the insurance market in particular is rather heavily regulated. There are, however, non-statutory areas of law, which rely heavily on case law. When applying statutory law, the Norwegian courts will place great emphasis on preparatory works and case law, as well as other relevant sources of law. In respect of the insurance sector, the courts will take into consideration court decisions, preparatory works and decisions from the Norwegian Financial Services Complaints Board (FinKN).

Relevant (Re)insurance Legislation

As previously noted, the insurance market in Norway is rather heavily regulated. The primary legislation governing the insurance and reinsurance market in Norway is the Act on Financial Institutions and Financial Groups from 2015 (the Financial Institutions Act) and the regulations related to the act, such as Regulation No 1502 on Financial Institutions and Financial Groups, dated 9 December 2016 (the Financial Institution Regulation).

The Norwegian Act on Insurance Activity from 2005 (the Insurance Activity Act) outlines the requirements for insurance companies that conduct insurance activities according to the Financial Institutions Act.

The Norwegian Act relating to Insurance Contracts from 1989 (the Insurance Contracts Act) sets out the rights and obligations of the insurer and the insured concerning the writing of insurance contracts in Norway. The Insurance Contracts Act does not apply for reinsurance.

Also, Norwegian law contains the Act on Choice of Law in Insurance from 1992, which applies to the choice of law in direct insurance contracts.

In addition to the foregoing, the Norwegian Insurance Mediation Act from 2005 applies in respect of all brokers and other parties which sell insurance commercially.

Regulatory Bodies and Sanctions

The regulatory framework on insurance and reinsurance is placed within the authority of the Norwegian Ministry of Finance, and the Financial Supervisory Authority of Norway (the FSA) is responsible for supervision and regulation. The FSA is an independent government agency subject to laws and regulations provided by the Norwegian Parliament and the Norwegian Government, through the Norwegian Ministry of Finance. The FSA is founded on international standards for financial supervision and regulation.

The FSA and the Norwegian Ministry of Finance are authorised to impose sanctions, such as corrective orders, fines or withdrawal of licences in cases of breaches of the regulatory framework.

Legislation and Guidance

The Financial Institutions Act regulates the insurance market, including the licence application process, operating requirements, capital requirements, and the solvency capital requirement. The Financial Institutions Act also includes requirements concerning corporate bodies and functions.

As Norway is a member of the European Economic Area (the EEA), the insurers and reinsurers incorporated in other EEA states which provide insurance or reinsurance services in Norway through branches are (with some exceptions) governed by both the Norwegian regulatory framework and the regulatory requirements in the home state.

However, only a few of the requirements of the Financial Institutions Act and the Insurance Activities Act apply for insurers and reinsurers that conduct activities in Norway, on a cross-border basis, eg, obligations to disclose information on sales. Such foreign insurers and reinsurers are otherwise exclusively regulated by the licence and potential requirements applicable in the home state.

Licence

In order to write insurance and reinsurance business in Norway, a licence must be obtained. An application to obtain a licence to be permitted to provide insurance or reinsurance services must be filed with the FSA, in accordance with the procedure that follows from the Financial Institutions Act.

The insurance or reinsurance company must obtain a licence which reflects the specific type of insurance services that it will offer. The applicable requirements vary depending on whether the insurance company is to provide life insurance or not.

An example of the different requirements for different insurances is the required start-up capital. If an insurer intends to provide life insurance or liability insurance for aircraft, motor vehicles, ships or other liability insurances, the requirement is to have a start-up capital of EUR3.7 million. In respect of other insurance undertakings, a start-up capital of EUR2.5 million is required.

However, there are also some requirements that will apply for all types of insurance, for example:

  • the management of the (re)insurance company, including members of the board of directors, the CEO and other executives, who will participate in the management of the entity, must be considered sufficiently experienced and capable of managing the business in compliance with the applicable regulatory framework;
  • pursuant to Chapter 3 of the Financial Institutions Act, the licence application should include information about the applicant's ownership and management structure, governance and control systems, how the capital requirements will be met, capital structure and a forecast of the financial position for the first three years running, budgets, and group affiliation. Further, the application must include information about the proposed operational activities the company intends to offer, how the anti-money laundering requirements will be met and how payment institutions and electronic money institutions will safeguard customer assets.

The FSA will consider whether the application might entail follow-up questions. The Ministry of Finance or the FSA will either itself, or through a delegation, process the application within six months.

The FSA also have the authority to set certain conditions for a licence. This includes that the business shall be operated in a specific manner, or within certain limits. Any conditions for a licence shall be in accordance with the purpose of the Financial Enterprises Act.

Insurers that are tax-resident in Norway, or are performing business activities that take place or are managed from Norway (permanent establishment), are subject to Norwegian corporate taxation. Concerning the payment of insurance premiums, these will be considered as income for such insurance companies, and thus subject to taxation. An exception to this is life insurance premiums, which in most cases will not be considered taxable. Whether life insurance premiums are subject to taxation must be assessed on a case-by-case basis.

There is an absolute requirement under Norwegian law that all insurance and reinsurance companies obtain a licence to provide insurance services.

Insurers or reinsurers who seek establishment in Norway must apply for a licence, following the procedure set out in Chapter 3 of the Financial Enterprises Act. Reference is made to the licensing process described above under section 2.2 The Writing of Insurance and Reinsurance.

The question as to whether a foreign insurer may conduct business in Norway, is highly dependent on where the insurer is based, more specifically if it is based within the EEA, the EU, or elsewhere.

If an insurer is authorised to provide insurance services in a member state of the European Economic Agreement, it will be permitted to carry out insurance services in Norway through either a branch or on a cross-border basis. It is important to note that the insurance company must inform the relevant regulatory authority in the EEA country.

An insurance company established within the European Union (EU) may passport its rights to offer insurance in Norway on a cross-border basis.

It should be noted that insurers from outside of the EEA will not be able to provide insurance directly in Norway, unless a Norwegian subsidiary is established. This subsidiary must also hold an insurance licence for the particular insurance service, which it provides to the market.

For other insurance companies, which are neither domiciled within the EU or the EEA, the possibility to provide insurance is much more narrow and will not be allowed, unless they are invited to do so.

Insurers from the United Kingdom

The United Kingdom left the EU on 31 January 2020, whereby a transition period commenced. In this transition period, the United Kingdom has been treated as if it were still a member of the EU or EEA, and thus, there have been very few practical changes in Norway's relationship with the United Kingdom. The transition period ended on 31 December 2020. Consequently, after 1 January 2021, UK insurance companies will not be able to passport their rights to offer insurance in Norway on a cross-border basis as provided above.

Reinsurance

The situation is slightly different for reinsurance companies. Reinsurers established in a non-EU country may provide reinsurance in Norway without any need to meet any licence and registration requirements in Norway. Reinsurers established in an EU-country need to have passported their rights to offer insurance on a cross-border basis in Norway. It is not a requirement under Norwegian law for foreign insurers to write reinsurance with a domestic insurer.

While there is no explicit prohibition for fronting under Norwegian law, it is not frequently used. There is also limited guidance on the requirements of such fronting as the Norwegian industry has remained fairly domestic.

The M&A market in Norway has been fairly calm in respect of insurance companies.

There was one substantial merger in 2019, between the two insurance companies Sparebank 1 and DNB, creating Fremtind Forsikring. Fremtind Forsikring is today the third-largest insurance company in Norway, based on market share. In November 2020, it was also announced that the Tryg-Group – together with the Canadian company Intact – wanted to purchase British RSA. RSA is a large insurance group which owns, amongst others, Codan and Trygg-Hansa in Scandinavia. If this acquisition goes through, this will take over Fremtind's position as the third-largest insurance company measured in market shares.

The Norwegian Insurance Mediation Act from 2005 applies in respect of all brokers and other parties that sell insurance commercially. It is an absolute requirement under the Act that all insurance intermediaries obtain a licence from the FSA to sell insurance in Norway commercially.

According to the Norwegian Insurance Mediation Act, it is a requirement for the management to have a general knowledge of insurance brokerage. The company is also required to have sufficient liability insurance against claims for damages that the company may incur. An insurance brokerage company must run the business, following good brokerage practice, and not act in a way that is suitable for creating doubt about its position as an independent intermediary. The insurance brokerage company shall provide the documentation necessary for an insurance contract to be concluded. The FSA may also set out additional requirements.

There are certain exceptions as to the applicability of the Insurance Mediation Act. One practical example is that freight-forwarders who offer goods insurance that covers damage to and loss of goods during transport and storage assignments performed by the freight-forwarder as an additional service will normally not be covered by the exemption.

In Norway, the active distributors include insurance brokers, agents, and bancassurance.

The Norwegian Insurance Contract Act provides several provisions regarding both liability insurance and personal insurance which are mandatory, and thus cannot be deviated from to the disfavour of the insured. In respect of duty of disclosure of information and the insurance companies' obligation to seek, there is a distinction between these obligations and they are briefly described below.

Liability Insurance

In connection with the conclusion (or renewal) of an insurance contract, the insurance company may request information on matters that may be relevant to its assessment of the risk. The policyholder must provide correct and complete answers to the insurance company's questions.

The policyholder must also, on its own initiative, provide information about special circumstances that must be understood are of significant importance for the insurance company's assessment of the risk. If the policyholder becomes aware that he or she has provided incorrect or incomplete information about the risk, the policyholder shall report this to the company without undue delay.

Personal Insurance

In respect of personal insurance, the insurance company shall inform the policyholder about the duty of disclosure that follows from the Insurance Contracts Acts. Before the insurance company has undertaken to cover the insurance, the policyholder and the insured must answer the questions that the company asks in order to assess the risk, and the policyholder and the insured must provide correct and complete answers to the company's questions. At the request of the company, the policyholder and the insured shall provide information on special matters that they must understand are of significant importance for the company's assessment of the risk.

Mandatory Nature of the Insurance Contracts Acts

In respect of commercial liability insurance, the parties to the insurance contract are free to contract the terms for the insurance contract. This applies when two of the following conditions are met; the insured enterprise has:

  • more than 250 employees;
  • revenues of more than NOK100 million, based on the last available financial statements; or
  • assets worth more than NOK50 million according to its balance sheets.

The exception also applies when the insured’s business is mainly based in a foreign country, or in the event that the insurance pertains to vessels or aircraft, or if the insurance concerns goods under international transportation.

The failure to comply with duties of disclosure in the negotiations of an insurance contract is also covered by the Insurance Contracts Acts. For liability and personal insurance, the following applies:

Liability Insurance

If the insured has fraudulently neglected the duty to provide information and if an insurance event has occurred, the company is without liability towards the insured. If the insured has otherwise neglected his or her duty to provide information, and it is not just a small matter to blame him or her, the insurance company's liability to the policyholder may be reduced or waived.

If the company becomes aware that the information it has received about the risk is incorrect or incomplete at any significant point, it may terminate the insurance with 14 days' notice. If the policyholder has acted fraudulently, the company may nevertheless terminate this and other insurance agreements it has with the policyholder with immediate effect.

Personal Insurance

If the policyholder or the insured has fraudulently neglected the duty to provide information, and if an insurance event has occurred, the company is without liability. If the policyholder or the insured has otherwise neglected his or her duty to provide information, and it is not only a small thing to blame the person in question, the company's liability can be reduced or waived.

If the company becomes aware during the insurance period that the duty to provide information has been neglected, and it is not only a minor matter to charge the policyholder or the insured, it can terminate the insurance with 14 days' notice. If the policyholder has acted fraudulently, the company may nevertheless terminate this and other insurance agreements it has with the policyholder with immediate effect. However, if it must be assumed that the company with knowledge of the correct circumstances had covered the insurance against a higher premium or otherwise on other terms, the policyholder may, before the expiry of the notice period, demand to continue the insurance relationship on such terms.

Reinsurance

It should be noted that the Insurance Contracts Act does not apply in respect of reinsurance contracts. Consequently, the Norwegian Contracts Act of 1918 applies, and in particular Section 30, stating that fraudulent misrepresentation will render a contract null and void.

As previously noted in 5.1 Distribution of Insurance and Reinsurance Products, the Insurance Mediation Act regulates all insurance mediation in Norway and consequently applies to all parties performing insurance or reinsurance mediation. Depending on the scope of the mediation provided, an intermediary may be involved in the negotiations of the insurance contract on either the insured's behalf or the insurer's behalf.

A core principle of mediation of insurance is good brokering practice:

  • an insurance brokerage company must run the business following good brokerage practice. The insurance brokerage company must not act in a way that is suitable for creating doubt about its position as an independent intermediary. The insurance brokerage company shall provide the documentation necessary for an insurance contract to be concluded;
  • the insurance brokerage company shall exercise due care when choosing an insurer and dissuade the client from using insurers whose ability to fulfil their obligations under insurance may be questioned or is unknown;
  • the insurance brokerage firm may not, through agreements with insurance companies or in any other way, arrange itself so that it may affect the insurance brokerage firm's independence as a broker.

Repeated or gross breach of the duty of good brokering practice can result in fines or imprisonment for up to one year.

There are no specific requirements or distinguishing features of an insurance contract under Norwegian law. Insurance contracts are governed by the Insurance Contracts Act, whereby the insurance company is obliged to draw up an insurance policy when an insurance agreement has been made and the conditions for that insurance have been decided. This policy should be in writing and confirms that an agreement has been made, in addition to referring to the conditions of that insurance. The policy shall highlight the following points:

  • whether the insurance company has reserved that the liability shall only begin to run when the first premium has been paid;
  • what reservations it has made regarding the limitation of liability in connection with a change in the risk;
  • the safety regulations it has established. The company may refer to safety regulations issued by others if it is reasonable to require the policyholder to know the contents. The insurance certificate must state that the company will, on request, provide the policyholder with a copy of the regulations to which it refers;
  • the time limit for giving notice of the insured event, cf section 8-5, first paragraph;
  • the right to demand tribunal proceedings, or other similar schemes established to resolve disputes.

If the company has neglected its duty to provide information following the above, it can only invoke the relevant provision if the policyholder or insured was nevertheless familiar with the condition.

For something to be insured, there must be a legal interest.

If a contract is deemed to be an insurance contract, the Insurance Contracts Act will also apply. If the Insurance Contracts Act is mandatorily applicable or if not excluded or otherwise deviated from in the insurance agreement, the Insurance Contracts Act will also impose number of obligations on the insured as well as on the insurance company.

As a starting point, the insurance contract is a contractual relationship between a policyholder on the one hand and an insurance company on the other. It is the policyholder who enters into the insurance contract with the company and pays the relevant premium, and who would normally benefit from the insurance through the protection provided by the agreement.

The regulation of third-party status and rights under an insurance contract can be laid down either in law or in the agreement.

In respect of non-life insurance, this issue is mainly solved in two different sets of rules. The main set is co-insurance, which provides others than the policyholder with interest related to the subject of insurance and the opportunity to take advantage of it. Primarily, co-insurance is used in property damage insurance. However, co-insurance may also be used in liability and operational interest insurance. The second set of co-insurance is linked exclusively to liability insurance, aiming to insure the injured party's legal position under the insurance taken out by the policyholder.

In personal insurance, the main issue concerns who is entitled to the company's benefits in the event of an insured event.

As for collective insurance – including both non-life insurance and personal insurance – third parties may also have rights under an insurance policy.

The involvement of several beneficiaries to a contract does not impact the disclosure obligations.

As the Insurance Contracts Act is mandatorily applicable for consumers, the contracting parties in a commercial setting (see 6.1 Obligations of the Insured and Insurer) will have a greater degree of contracting freedom. On a high level, one can say that a consumer will have less onerous obligations in respect of disclosure and other obligations than a company taking out insurance. Moreover, the insurance company has more onerous obligations of informing the consumer rather than a corporation when entering into an insurance contract. However, it should be noted that the industry generally deems the legal framework to be well balanced.

As mentioned in 6.2 Failure to Comply with Obligations of an Insurance Contract, it is noted that the Insurance Contracts Act does not apply in respect of reinsurance contracts. Thus, the parties have an even greater degree of contracting freedom. A reinsurance contract will be subject to the Norwegian Contracts Act and Norwegian contract law.

The use of Alternative Risk Transfer is still not a common alternative to insurance in Norway. There is no law that is directly applicable for ART transactions.

There is currently no information available on this subject.

The general rules under Norwegian law on the interpretation and completion of agreements, as established through case law, apply to insurance contracts.

However, the negotiation and conclusion of an insurance contract is not performed in the same way as a normal contract. As stated in 6.4 Legal Requirements and Distinguishing Features of an Insurance Contract, there is no requirement that the parties enter into a written contract of insurance, but the insurer will issue an insurance policy, which provides the terms and conditions of the insurance. Consequently, the rules that generally apply to the interpretation of unilaterally set standard terms will be of particular importance for insurance contracts.

Under Norwegian law, an objective principle of interpretation is applied, and it is therefore important when interpreting insurance contracts and insurance terms to find the objectively justifiable and reasonable content of the agreement which has been entered into. What the Norwegian courts will look for is what objectively appears to be the natural understanding of the terms, not the different view of it which one of the parties may have had.

Conversations, communication and negotiations prior to the conclusion of an agreement can, in many instances, be used to clarify a joint understanding between the parties of the content of a contract that has been negotiated. However, when interpreting insurance contracts, these items will be less relevant, and normally these do not play any major role. This is due to the fact that the insurance is taken out preferably on the basis of a standardised and unilaterally stipulated insurance term, which gives little room for actual negotiations. Exceptions to this may, however, occur, mainly within the business insurance and in life insurance.

While most contracts are subject to freedom of contract, it is also worth noting that the Insurance Contracts Act directly governs the insurance contract and that it is mandatorily applicable in many situations (see 6.1 Obligations of the Insured and Insurer). The Insurance Contracts Act will therefore more actively be a contributing part of the interpretation or revision of an insurance contract, compared to most commercial contracts for the sale of a service.

In contrast to the way in which insurance contracts are negotiated, reinsurance contracts will be subject to more concrete negotiations. Consequently, the interpretation of these contracts will be focused more on the general practice of interpretation of mutually negotiated contracts than on what has been described above. Further, it should also be noted that the Insurance Contracts Act does not apply to reinsurance contracts, credit or other surety insurances.

Warranties are, under Norwegian law, considered similar to all other contractual terms. See 8.1 Interpretation of Insurance Contracts and Use of Extraneous Evidence.

While there are conditions for an insurer to be liable, such conditions will not be referred to as "Conditions Precedent". These are contractual terms treated as normal terms of a contract, which must be complied with.

As an example, there is a requirement under the Insurance Contracts Act that the insured notify the insurance company within one year after the insured received knowledge of the circumstances justifying it.

The ordinary courts may hear disputes on coverage. It should be noted that there are no special courts for insurance cases in Norway. This applies to all types of insurance agreements, including insurance agreements with a consumer as well as agreements for reinsurance. Thus, the legal venue for proceeding with litigation will follow the Norwegian Disputes Act.

According to the Norwegian Disputes Act, for disputes regarding monetary claims, the first instance will be the conciliation council. If agreed by the parties to the insurance agreement, a dispute regarding cover may also be settled by way of arbitration. However, only if the dispute is above NOK200,000 and both parties are represented by lawyers will the case proceed to the first instance.

A dispute regarding cover may also be referred to arbitration. This is rather common within marine insurance matters, and also reinsurance disputes.

Complaints Board

Disputes which arise between an insurer and a consumer regarding insurance coverage will in the first instance be brought before the Norwegian Financial Services Complaints Board (FinKN). FinKN is a private complaints board. It does not have the authority to give binding judgements; however, its guidance is often followed by the parties. A condition for being able to pursue a claim against the insurance company to FinKN is that the company must be a member of the complaint organisation.

Time Bars

The limitation period for notice of an insurance claim and commencement of proceedings follow from the Insurance Contracts Act, and must be followed in order for the claimant to receive payment from the insurer.

The insured loses the right to compensation if the claim is not reported to the company within one year after the insured became aware of the circumstances justifying the claim.

In addition to the duty to notify the insurer, there is also a general time bar for insurance claims of three years. Time starts to run at the expiry of the calendar year when the insured received the requisite knowledge of the circumstances that justify the insurance claim. The insurance claim becomes time-barred no later than ten years after the end of the calendar year in which the insured event occurred.

In the case of personal insurance, there are special limitation periods for endowment insurance (ten years, no more than 20), other claims for compensation or insurance sums (three years, no more than ten), accident or sickness insurance and pension or annuity insurance (ten years, with three years for overdue instalments).

It should be noted that commercial insurance contracts may provide a time limit of reporting claims which may be shorter than in the insurance contract. An example of this is §5-23 in the Nordic Marine Insurance Plan of 2013 Version 2019, which requires that the notice shall have occurred within six months from when the insured received knowledge of the circumstances justifying the claim.

Norway, through the Lugano convention, is a party to the Brussels instruments on jurisdiction. Section 3 of the Lugano convention contains the rules of jurisdiction for insurance matters. In brief, Section 3 offers the insurance customer the benefit of added jurisdictions; in addition to claiming at the insurers' domicile, the insured can also commence proceedings at his or her own domicile (in addition to where the insurance event took place).

On the choice of law, Norway has implemented the Act on Choice of Law in Insurance, which provides mandatory application of Norwegian law in certain categories on insurance (life insurance). In other areas of insurance, the choice of law can be agreed, unless mandatory law provides otherwise. If no choice of law is agreed, the choice of law is to be decided on the basis of a closest-connection test. 

Unlike in many other jurisdictions, the district courts have jurisdiction over all cases. Hence, there is no division of ordinary courts or administrative courts, or a distinction between civil or criminal courts. Consequently, there are no special courts which handle insurance matters.

The courts in Norway have three tiers and are as follows:

  • 60 district courts;
  • six appeal courts
  • the Supreme Court.

The first instance for disputes above a certain monetary size, meaning where the claim is above NOK200,000, and both parties have been represented by a lawyer, is the district court. If the dispute is less than NOK200,000 and only one side or neither is represented by a lawyer, the case will first go to a local Conciliation Board.

Litigation is initiated when a party submits an application for a summons with a district court which has jurisdiction over the dispute. Before such an application, a letter of demand should first be submitted. An application should, as a minimum, contain the following:

  • the courts;
  • the names and addresses of the parties, deputies, and legal representatives;
  • the claim asserted, and a claim that states the judgment the plaintiff demands;
  • the factual and legal justification of the claim;
  • the evidence that will be presented;
  • the basis for the court to hear the case if there can be any doubt about this; and
  • the plaintiff's view of the further processing of the case, including agreements that may be relevant to the process.

The summons shall provide a basis for a prudent treatment of the case by the parties and the court. Claims and factual grounds must be stated in such a way that the defendant can take a position on the claims and prepare the case.

If the application fulfils the requirements, the district court will issue a writ of summons and serve the respondent with the summons. The respondent must thereafter submit their reply.

The Norwegian courts will strive to find an amicable settlement to the dispute if possible.

After the conclusion of preparatory proceedings, where the parties will exchange several written pleadings, a hearing will be held. The main rule is that hearings are held as oral hearings, but in some cases these can be conducted in writing. A tendency to more written proceedings has been experienced during the Covid-19 outbreak. Following the hearing, the court will issue a decision.

A decision from the District Court may be appealed if the court's factual or legal grounds for its decision are insufficient, or due to a procedural error. The Court of Appeal may reject an appeal, if it clearly cannot succeed. While the majority of cases are allowed a new hearing by the Court of Appeal, a much more narrow group of cases will be allowed into the Supreme Court. On an annual basis, the Supreme Court hears approximately 100 cases. The Supreme Court is the final instance in Norway and requires that the case has high precedential value, significant public importance or that there are other strong reasons for the case to be tried by the Supreme Court.

Norwegian court judgments and arbitral awards will be easily enforced in Norway. Furthermore, Norway is also a party to the Lugano Convention, meaning that it also ensures the enforcement of judgments in the European Union and European Economic Area.

Norway is also a member state of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention). Consequently, the enforcement of foreign arbitral awards is ensured.

There is no requirement under Norwegian law that an agreement for arbitration must be in writing. Arbitration agreements will be just as binding on the parties, regardless of the form the parties select when entering into an agreement. However, it is easier to prove the content of the arbitration agreement if it is in written form in the event of a dispute.

Furthermore, it follows directly from the Norwegian Arbitration Act of 2004 that the courts shall reject legal actions relating to arbitration if a party requests rejection, at the latest at the same time as the party enters into the reality of the case. This will often be when a party responds to a writ of summons. The court shall bring the case if it finds that an arbitration agreement is invalid or for other reasons cannot be enforced. In other words, there is a condition under Norwegian law that a party has to decide to object. The court in question does not have the right to make a decision to reject ex officio. The question of whether or not an arbitration clause is enforceable will be based on substantive contract law.

See 9.4 The Enforcement of Judgments.

The Norwegian courts may, during the course of legal proceedings, propose to the parties that they conduct court mediation. This is recommended by the courts if they consider that the case is suitable for mediation.

A court mediation is a voluntary alternative dispute resolution mechanism, meaning that the court cannot force the parties to mediate any dispute. However, it is generally recommended that parties try court mediation, if the case is suitable for this. Opposing an attempt at an amicable solution can result in negative consequences for the person in question when deciding on legal costs if the dispute later escalates to court proceedings.

Court mediation is conducted by using a judge as the mediator. Historically, this alternative dispute resolution mechanism has had a high success rate.

If the parties are unsuccessful during this mediation, the case will proceed to a hearing. The judge hearing the case will not be involved in the mediation.

Also, and as mentioned in section 9.1 Insurance Disputes over Coverage, the FinKN is also an alternative dispute resolution mechanism which can be applied for insurance disputes.

An insurance policy will frequently have separate provisions in respect of the insurance company's obligation to make a payment of a claim. If the insurance policy is silent (or if it refers to a consumer), the Insurance Contracts Act does provide that the insurance company shall pay compensation as soon as the company has had a reasonable time to clarify the liability and calculate the compensation. If it is at an earlier time clear that the company must at least pay a party, the company must pay the corresponding amount in advance.

The main rule under Norwegian law is that interests are recoverable in respect of a claim. The Insurance Contracts Act also provides the insured with a right to set forth a claim for overdue payments. At the end of 2020, the applicable annual rate was 8%. This rate is subject to adjustments two times a year, in accordance with the general interest level.

Furthermore, a claimant may also be able to claim for damages for losses or damages incurred by the insured if caused by the insurer's late payment. However, this does require that the insured can show that there is a loss, that there is causation, foreseeability and negligence.

There are no punitive damages available under Norwegian law.

Under Norwegian law, an insurer's right of subrogation will not be dependent on a separate clause providing that right. Having said that, such clauses are not uncommon. It is a general principle that an insurer will obtain a right of subrogation upon payment of an indemnity. Consequently, the insurer will step into the insured's legal position, and proceed with a potential claim against the tortfeasor.

In recent years, there has been an increased focus on insurtech, and several of the large insurance companies are focusing on developing their technology. However, to date, there seems to be a minimal market within insurtech. This may be because the Norwegian insurance market is fairly well developed, and because of the start-up requirements of an insurance company. See the start-up capital requirement for different types of insurances in 2.2 The Writing of Insurance and Reinsurance.

There is currently no information available on this subject.

Cyber Attacks

An increasing number of Norwegian companies have been targeted by fraudsters using digital tools. The PwC Cybercrime Survey from 2019 shows that 60% of the respondents are increasingly more worried about the cybersecurity threat in 2019 compared to the previous year. As pointed out by PwC, it is not only concerns that are increasing; the number of attacks of Norwegian companies are also increasing. The report shows that Norwegian companies, to a large extent, experience being exposed to targeted burglary attempts. This reflects a changing threat picture where attackers are becoming more and more sophisticated. As many as 67% of the respondents answered that they had experienced a targeted attack on their particular business.

As stated in the Capgemini World Insurance Report from 2019, it appears that there is a rather significant gap in the insurance market generally, as well as within Norway; the supply of cover from the insurance industry still remains in the traditional world view.

During the COVID-19 pandemic, Norwegian courts gave priority to cases that were considered most important, such as criminal cases, or cases involving mental health care or children. Norwegian courts have, however, initiated numerous measures to limit delays and other effects of the pandemic. In particular, Norwegian courts have introduced the extensive use of remote hearings and remote examination of witnesses in other cases. Also, the courts have increased the number of cases that are decided based on written proceedings and have appointed interim judges to prevent further delays and limit the caseload. For the time being, some delays must still be expected.

There seems to be limited impact on the insurance or reinsurance contracts due to COVID-19, to date. However, it may take some time before any material changes will be experienced.

Although Norway is not a part of the EU, under the European Economic Area (EEA) Agreement to which Norway is a party, Norway is obliged to implement certain EU directives and regulations.

Insurance is considered as EEA-relevant and, consequently, the majority of EU directives and regulations concerning this sector will be implemented into Norwegian law. It is worth mentioning that these directives and regulations will not directly come into effect in Norway or provide Norwegian citizens with rights unless they are implemented into Norwegian law. Over the last several years, there has been a surge of new laws and amendments that have increased the insurers' and the insurance intermediates' obligations. Consequently, the increased complexity in the regulatory framework is a continued focus area in Norway.

Increased Focus on Environment, Society and Governance (ESG)

There is no doubt that the focus on Environment, Society and Governance has increased drastically over recent years, and especially in 2020. There is an increased obligation for ESG reporting, with more to come, with, for example, the EU Taxonomy Regulation coming into force. The EU Taxonomy regulation is a milestone in the sustainable finance market, providing a classification tool aimed at investors, companies and financial institutions (including insurance companies). While the Taxonomy Regulation is for the EU – of which Norway is not a member – it is worth noting that the EU is Norway's biggest trading partner. Thus, there is little doubt that the Taxonomy Regulation will have a great impact also on the Norwegian market.

Kvale Advokatfirma DA

Haakon VIIs Gate 10
1061
Oslo
Norway

+47 22 47 97 00

+47 21 05 85 85

post@kvale.no www.kvale.no/en
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Law and Practice

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Kvale Advokatfirma DA is a business law firm dating back to 1985. Throughout the years, Kvale has shown consistent organic growth and today is comprised of 94 lawyers. Kvale advises on most aspects of business law and is an acknowledged specialist in a number of practice areas. The firm’s growth is driven by its pursuit of quality combined with a keen attention to its clients’ businesses. Kvale’s clients appreciate this, whether they are small- or medium-sized businesses or large national and international corporations. Main areas of practice are oil and gas/offshore construction, corporate and M&A, dispute resolution and TMT/IP, as well as respected boutique practices within renewable energy, competition law, employment law, tax and shipping. Kvale is active within dispute resolution across all the aforementioned fields and is consistently involved in very major complex arbitration and litigation cases.

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