Civil proceedings
Main characteristics
Civil litigation in Norway is governed by the Dispute Act of 2005.
In general, civil proceedings are characterised by party autonomy. As the clear main rule, it is up to the parties themselves to decide whether to bring or withdraw a case or an action, what evidence to present and which arguments to make. The judge has, however, reasonably strong powers to control the conduct of the proceedings in order to ensure due process and is responsible for the application of the law.
At the preparatory stage, the parties will exchange written submissions, presenting their claims, arguments and supporting evidence. All ordinary courts now use an online system to exchange information and documents with the parties' legal counsels in each case.
Ordinarily, the parties will present oral arguments and evidence in a main hearing. While the principle of free assessment of evidence and the law does apply, the main rule is that a judgment may only be based on evidence that has been presented during the main hearing. The reason for this is to ensure that the parties have had sufficent opportunity to respond to the evidence and arguments put forward (contradiction).
The strong emphasis on oral hearings and direct witness testimony (normally without written statements submitted in advance) is a distinguishing feature of litigation in Norway compared to many other jurisdictions.
Bringing legal action in civil proceedings
To bring a legal action, the claimant must file a writ setting out the key factual and legal aspects of the case.
Legal action must be brought before the district court with jurisdiction over the claim. Professional parties tend to agree on the legal venue as part of their contract, and jurisdiction clauses are accepted under Norwegian law. In the absence of an agreement on jurisdiction, the competent court is usually the court in whose jurisdiction the respondent is domiciled. To some extent and in certain cases, however, the claimant may choose the forum. If, for example, a claim for damages is brought against several respondents domiciled in different locations in Norway (or abroad), the claimant may choose to bring the legal action before a court in whose jurisdiction one of the respondents is domiciled, and by way of consolidation of actions bring the other respondents under the jurisdiction of the chosen venue.
The courts ensure that the writ is served on respondents domiciled in Norway. If the respondent is neither a Norwegian resident, nor represented by a Norwegian lawyer, the writ must be served under applicable international conventions, in particular the Hague Convention of 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
The respondent is usually given three weeks to file a written response. In the response, the respondent will set out initial arguments in answer to the claim and, particularly in major commercial disputes, a counterclaim is often issued at the same time.
If the deadline for filing the response is not met, the respondent is deemed to be unlawfully absent. If the court declines to grant discretionary reinstatement, then, upon the claimant's request, the court may enter judgment in default in favour of the claimant.
Shortly after the respondent has submitted its response, the court prepares a plan for the further proceedings in dialogue with the parties. In practice, the parties meet with the judge in a case management conference to agree on procedural issues such as time limits for further submissions, appointment of expert lay judges, whether on-site inspection, access to evidence or production of evidence ar required, the timing and duration of the main hearing etc.
The preparatory stage usually ends two weeks prior to the main hearing, but the court may set a different (usually earlier) end date.
The preparatory stage is deemed completed three weeks before the main hearing, unless the court sets another time. As a rule, the court requires the parties to submit final briefs no later than two weeks before the main hearing. The final brief must briefly state the claim, its factual and legal grounds, and the evidence the party will present. A proposal for the timetable for the main hearing shall accompany the brief.
After completion of the preparatory stage, a party may not, against the opponent's protest, present new claims, expand an existing claim, invoke new grounds, or offer new evidence, unless this occurs before the main hearing and is prompted by an opponent's pleading that could not reasonably have been answered earlier, or the court permits it.
The court may, on certain discretionary conditions, permit later submission of evidence, in particular if such new evidence may increase the likelihood of a correct outcome on the merits. In practice, the time limit for submitting new evidence is regularly treated rather liberally, with new evidence even being presented and accepted as late as during the oral hearing.
Judicial mediation before the ordinary courts
At each stage of the proceedings, the court has a duty to inquire about the prospect of an amicable resolution to the dispute, in full or in part. In practice, this issue is brought up by the judge in the firs case management conference with the parties, and often revisited upon commencement of the oral hearing. Additional aspects of judicial or extrajudicial mediation are explored in a separate section.
If the parties attempt, but fail, to reach a judicial settlement of the dispute, the judge overseeing the mediation is disqualified from adjudicating the hearing on the merits, and its contents remain confidential.
The main hearing
Court composition
The main rule is that cases are presided over by one judge in the district court, three judges in the court of appeal, and five justices in the Supreme Court. The disputing parties have no influence over the selection of the professional judges who will preside over the hearing, unless a disqualification motion is brought.
Norwegian judges are generalists in the sense that any judge may adjudicate any matter. Land consolidation cases, intellectual property cases and cases concerning collective agreements are examples of a short list of exceptions. Furthermore, there have been some limited attempts at specialisation, notably in Oslo District Court, in the past few years.
In the absence of specialised judges, the parties may request the appointment of expert lay judges. In such cased, the court will usually appoint two experts nominated by the parties. As this provides the parties with an opportunity to influence the composition of the court, much effort is usually devoted to negotiating the nomination of two experts who are acceptable to both parties.
judges in The Supreme Court
judges in the courts of appeal
judge in the district courts
Characteristics of the main hearing
Main hearings in Norway are characterised by comparatively long, continuous oral proceedings with direct presentation of evidence. Although procedurally possible, there is no tradition for dividing the dispute into separate hearings. Equally unusual, but permitted if the parties and the court consent , are fully written proceedings.
In commercial disputes, it is for the parties to present their case in court in a form that enables the judge to grasp the key issues in dispute and to understand the important evidence. This may be time-consuming, as the court does not rely on the parties' previous written submissions. Since the judgment may only be based on the evidence that has been presented directly to the judge, any evidence and arguments previously submitted in pleadings must, in addition to witness testimony, be presented during the oral hearing. For these reasons, oral main hearings in Norway are unusually lengthy and may, in complex commercial disputes, last for weeks and even months.
The proceedings must be conducted in the Norwegian language. As a general rule, all documentary evidence submitted in a foreign language must therefore be made available to the court in a certified Norwegian translation, and oral witness testimony rendered in a non-native language must be interpreted.
The court may request the party who has called the witness to make the necessary arrangements for such interpretation, and the associated expenses may be included in any legal cost claim (further remarks are provided in a separate section). However, the court will usually accept written and oral evidenve in English without translation. Similarly, the other Scandinavian languages would neither require any such translation.
A party representative who does not master the Norwegian language, can, requested by the party, follow the oral hearings by simultaneous interpretation.
The various stages of the main hearing
The main hearing starts with a brief presentation by the presiding judge of the claims and the parties to the dispute. The claimant's legal counsel then makes the first opening statement. The claimant introduces the court to its views and presents the factual arguments, together with any related documentary evidence substantiating the claim.
Thereafter, the opposing party's legal counsel will present the case and the claim from the respondent's perspective, often in the same detailed manner as the claimant.
When the evidence has been presented and the witnesses have testified, the parties make one closing argument each, in which the key legal and factual aspects of their respective claims and the case are summarised and argued. The claimant's closing argument goes first, followed by the respondent's.
At the end, each party has a final opportunity to briefly rebut each other's arguments and comment on the submitted legal cost claims.
The main hearing is then closed, and the judge retires to prepare the judgment.
Pronouncement
A judgment shall be handed down within four weeks of the main hearing. However, in cases heard by a single judge (as is the general rule in the disctrict court), the period is two weeks. In practice, however, particularly in complex and lengthy cases, it often takes considerably longer. Compared to other jurisdictions, judgments are rendered rather quickly.
Public access
With some exceptions, oral hearings are open to the public. The public is entitled to access court records, records of judicial mediation, judicial rulings, and statements of costs in most cases.
In cases where an oral hearing is conducted, the public is also entitled to access the parties' written closing statements.
Appeal
Overview and characteristics
Litigants in Norway have the right to have decisions reviewed by a higher court. District court rulings may be appealed to a court of appeal, and the Supreme Court is the appellate court for court of appeal rulings.
Appeals to the Supreme Court require leave, which is granted only if the case is of great importance or presents a question of general legal interest. Leave is also required for appeals to the courts of appeal if the case concerns small value claims.
Furthermore, the court may, as a matter of exception, refuse to hear an appeal if it is obvious that it cannot succeed. The latter power is rarely exercised, but its use is increasing also in commercial cases if it is considered very likely that the outcome will be unchanged.
The Dispute Act stipulates slightly different rules for appeals against judgments, orders, and decisions. In general, however, an appeal must be grounded on either legal, factual or procedural error. The appellant must – usually within one month of service of the lower court's ruling – file a written notice of appeal, describing the alleged errors in the appealed ruling.
The courts will, ex officio, ensure that the appeal meets the formal requirements but the courts do not examine the substantive grounds for appeal, except for the very limited screening of obviously non-viable appeals.
While appeals against interlocutory orders and other decisions are usually decided on written briefs only, appeals against judgments are as a general rule subject to an oral hearing. The lawmaker's intention is that the oral hearing before the court of appeal should focus on the specific errors alleged by the appellant.
In practice, however, appeal hearings often become a complete rehearing of the case with direct presentation of evidence, not just a review of the alleged errors. Existing claims may be broadened with the opponent's consent, new evidence may be submitted without the opponent’s consent, and witnesses must testify directly before the court of appeal. While this may increase the likelyhood of obtaining a correct outcome, the appeal may prove costly and time-consuming.
If an appeal based on errors of law or fact is upheld, the court of appeal will hand down a new judgment or order on the merits of the case. If an appeal is not upheld, the district court ruling will stand, unless an appeal to the Supreme Court is granted leave. A successful appeal grounded on procedural error by the district court will result in the case being referred back to the district court.
If no relevant procedural error is found, the court of appeal will affirm the district court ruling. Said ruling will thus be final and binding, unless further appealed.
Appeal to the Supreme Court
Appeals to the Supreme Court require leave granted by its Appeals Selection Committee. Generally, leave is only granted if the case raises issues of significance beyond the specific case or if there are other compelling reasons. Even if a case is of great importance to the parties, and even if the court of appeal ruling may be open to challenge, appeals to the Supreme Court are usually not admitted. Typically, between 10–15 % of appeals are granted leave.
Appeals against judgments are subject to an oral hearing, while appeals against interlocutory orders and decisions are normally decided by the Appeals Selection Committee based on written submissions. Oral hearings before the Supreme Court are strictly limited to the admitted issues and focus on the legal aspects of the dispute rather than on matters of evidence. New or broader claims, as well as new facts or evidence, cannot be introduced before the Supreme Court, except in special circumstances. Usually no witnesses are heard by the Supreme Court, although written witness statements may be accepted.
The Supreme Court may hand down a new judgment, affirm the appealed ruling, or set aside the appealed ruling and refer the case back to the court of appeal.
Procedural conditions
Similar to the doctrine of standing (locus standi), Norwegian procedural law sets out specific conditions that must be met for a civil action to be heard by the courts. If the conditions are not met, the court will dismiss the case without considering the claim on its merits.
Some conditions, including the fundamental ones listed in the fact box, are absolute, meaning that they must be met in every legal action. Considering whether absolute conditions are met is an ex officio obligation of the courts, i.e. the courts must assess whether such conditions are met regardless of whether these are invoked by either party. Other procedural conditions are relative, implying that the courts will only consider them if invoked by the parties.
Legal capacity to sue and be sued; party representatives
In order to be a party to a legal action, a person must have the capacity to sue and to be sued. The following natural persons and legal entities will always have such capacity:
- any natural person;
- the State, municipal authorities, regional authorities and intermunicipal bodies;
- companies, including limited liability companies, as well as partnerships, including general partnerships and limited liability partnerships;
- cooperative societies, savings banks and foundations;
- estates in bankruptcy and estates of deceased persons under public administration;
- other organisations and state enterprises if specifically provided by statute.
Additionally, other legal entities may be a party to a legal action if they can demonstrate a sufficient interest in the action.
For legal entities, the capacity to act on its behalf is vested in the person authorised to accept service for the entity. For companies, this is usually the chair of the board. If such authorityh is held by more than one person, the board of directors must appoint the party representative. The party representative of a legal entity may delegate their powers to another person, provided that the person is employed by that entity. Such authorisation may either apply to a particular case or to specific categories of cases, and must be evidenced by a written power of attorney.
A party represented by a legal counsel is usually not required to attend court hearings in person, provided that the legal counsel is present.
Jurisdiction and legal venue
In international matters, a legal action may only be brought before the Norwegian courts if the case has a sufficient connection to Norway. As a starting point, claims filed against a Norwegian person or entity will be subject to Norwegian courts' jurisdiction. In the same way, claims against foreign citizens serving on the board of directors of a Norwegian entity, can be brought before the courts of Norway. Furthermore, the parties may agree in writing that Norwegian courts shall have jurisdiction, regardless of the respondent's domicile. Norwegian courts may also have jurisdiction pursuant to international agreements, such as the Lugano Convention of 2007, which essentially mirrors the Brussels Regulation.
The ordinary venue of first instance is the court in whose jurisdiction the respondent resides or has its registered address. The same applies to foreign entities with a branch, agency or similar place of business in Norway.
For certain types of claims, Norwegian procedural rules provide additional venues. This applies to, inter alia, claims regarding real estate, contracts, torts, employment, maritime disputes, consumer relations, claims against governmental bodies and claims against insurance companies. As a result, it is not uncommon for a legal dispute under Norwegian jurisdiction to have several possible legal venues of first instance. A legal action relating to a contract dispute may for example be brought either before the district court in whose jurisdiction the respondent is domiciled, or before the district court in whose jurisdiction the contract was to be performed. If multiple legal venues are available, the claimant may choose between them.
An agreement granting a certain legal venue exclusive jurisdiction – which is common in practice – will take precedence over any statutory provisions that would otherwise determine the legal venue.
If a legal action is brought before the wrong venue, the case will be referred to a court with territorial jurisdiction, or dismissed, if no legal venue can be established in Norway.
Time limits
Certain types of claims are subject to statutory time limits for instituting legal proceedings, in addition to the general limitation period/time-bar rules. Examples include certain tax claims, patent validity claims, certain public law decisions, employee dismissal validity claims and eviction claims.
Legal action relating to such claims must generally be brought within a few months, depending on the type of claim.
Final ruling and lis pendens
Another procedural requirement is that the claim has not already been decided between the same parties in a final and enforceable ruling. A ruling becomes final and enforceable when it can no longer be challenged by way of an appeal.
A final and enforceable ruling shall be recognised in any new proceedings between the parties relating to the same claim, and any proceedings relating to a claim that has already been decided will be dismissed. We note, however, that it is only the order of the court's ruling that is binding on the parties. Any opinions or reasoning expressed in the ruling are not binding in separate legal proceedings, provided that such proceedings concern a separate and distinguishable claim.
A ruling is generally only binding on the parties. An exception applies to third parties who, due to their relationship with a party, would have been bound by a corresponding agreement concerning the same subject matter as the ruling.
Hence, a third party may generally bring legal action regarding the same subject matter in dispute, without being bound by the existing ruling.
As Norway has acceded to the Lugano Convention 2007, civil claims that have been decided in a state that is a party to either the Lugano Convention or the Brussels Convention are enforceable in Norway, to the extent provided by statute or agreement with the state.
As with claims that are subject to a final and binding ruling, the courts will also dismiss any new action regarding a claim if an action regarding that same claim is already pending.
