Civil proceedings
Main characteristics
Civil litigation in Norway is governed by the Dispute Act of 2005.
In general, civil proceedings are based on an adversarial model, although with some inquisitorial elements depending on the nature of the case. It is, with few exceptions, for the parties to decide whether to bring or withdraw an action, as well as to decide what evidence to present and which arguments to invoke. The judge has, however, reasonably strong powers to control the conduct of the proceedings in order to ensure due process.
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' counsels in each case.
Ordinarily, the parties will present oral arguments and evidence in a main hearing. Although the principle of free assessment of the 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 ample opportunity for contradiction.
The emphasis on the oral hearing and on oral witness testimony may distinguish litigation in Norway from litigation in other jurisdictions.
Bringing legal action in civil proceedings
To bring a legal action, the claimant must file a writ presenting 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. Absent 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.
Claims against an insurance company for the payment of insurance proceeds may, as another example, be brought before the court in whose jurisdiction the claimant is domiciled.
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 Haag 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 submit a written reply. In the reply, the respondent will present initial arguments against the claim and, particularly in major commercial disputes, a counterclaim is often entered simultaneously.
If the time limit for submitting the reply is not met, the respondent is deemed to be unlawfully absent. If the court does not grant discretionary reinstatement, the court may then render a default judgment in favour of the claimant.
Shortly after the respondent has submitted its reply, the court prepares a plan for the further proceedings in dialogue with the parties. In practice, the parties meet with the judge in a teleconference or a meeting 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 is 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 completion of the preparatory stage is marked by the parties' submission of concise final briefs summarising their key arguments, along with an agreed preliminary schedule for the main hearing. After filing the final briefs, neither party may, as a general rule, invoke new or broader claims, new factual grounds for the claims, or new evidence, without the consent of the opponent. This represents the only preclusive deadline at the preparatory stage, which is not absolute. 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 often brought up by the judge in the initial meeting with the parties, and 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 the contents remain confidential
The main hearing
Court composition
The rules on court composition in the main hearing are set out in the Dispute Act. The main rule is that cases are presided over by one judge in the first instance, three judges in the second instance, and five justices in the Supreme Court. The disputing parties have no influence over the selection of the professional judges that 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 labour cases are examples from a very short list of exceptions. Furthermore, there have been some limited attempts at specialisation, notably in the Oslo District Court, in the past few years.
Absent specialised judges, the parties may request the appointment of expert lay judges. The court will in such cases 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 consent thereto, are fully written proceedings.
In commercial disputes, the adversarial nature of the hearing means that 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 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 testimonies rendered in a non-native tongue must be interpreted, simultaneously or otherwise.
The court may request the party that 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 provided in a separate section). However, the court will usually accept written and oral submissions in English without translation.
A party representative who does not master the Norwegian language, can, if arranged by the attorneys, follow the oral hearings by simultaneous interpretations.
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. Counsel to the claimant then makes the first opening statement. The claimant will in its presentation of the case introduce the court to its views and present the factual arguments, together with any related documentary evidence substantiating the claim.
Thereafter, opposing counsel will present the case and the claim from the respondent's perspective, often in the same detailed manner as counsel to the claimant did.
When the evidence is 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 thereafter closed, and the judge retreats to prepare the judgment.
Pronouncement
A judgment shall be rendered within two to four weeks after the main hearing. In practice, however, particularly in complex and lengthy cases, it takes considerably longer time.
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 statement.
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, and the conditions for granting leave is that the case is of great importance or 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 very rarely exercised.
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 case meets the formal appeal 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 oral hearing. The lawmaker's intention is that the oral hearing before the court of appeal shall concentrate on the specific errors contended by the appellant. In practice, however, appeal hearings are effectively 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. It is therefore a regular occurrence that considerably more time is invested in appeal proceedings than in proceedings before the district court. While this may increase the odds of obtaining a correct outcome, the appeal may prove costly and time-consuming.
If an appeal grounded 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 appealed.
Appeal to the Supreme Court
Appeal to the Supreme Court requires leave granted by its Appeals Selection Committee. Generally, appeals may only be granted leave if the case raises issues of significance beyond the specific case or if warranted for other reasons. Even if the 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. Only between 10–15 % of appeals are usually granted leave.
Appeals against judgments are subject to oral hearing, while appeals against interlocutory orders and decisions are normally decided by the Appeals Selection Committee based on written submissions. The oral hearing before the Supreme Court is strictly limited to the admitted issues, and is focused on the legal aspects of the dispute rather than on matters of evidence. New or broader claims, or new facts or evidence, cannot be invoked before the Supreme Court, except in special circumstances. Usually no witnesses are heard by the Supreme Court, however 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 stipulates conditions that must be met in order 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.
The fundamental conditions for a civil action to be heard by the courts
- The subject matter in dispute must be legal in nature
- The parties must show a sufficient connection to the subject matter in dispute
- A court decision will have tangible, rather than theoretical, consequences for the parties
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 are ex officio obligations of the courts, i.e. the courts must determine 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.
Furthermore, 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 their behalf is held by the person authorised to accept service on behalf of the legal entity. For companies, this will usually be the chairperson of the board. If such capacity is held by more than one natural person, the board of directors shall appoint the party representative. The party representative of a legal entity may assign his or her powers to another natural person, provided that the latter person is employed by said legal entity. Such authorisation may either apply to a certain case or for specific types of cases, and shall be evidenced by a power of attorney issued in writing.
A party that is represented by counsel is usually not required to attend court hearings in person, provided that said counsel attends.
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 where the respondent is domiciled. Norwegian courts may also have jurisdiction pursuant to international agreements, such as the Lugano Convention of 2007, which mirrors the Brussels convention of 1968.
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. Hence, it is not uncommon for a legal dispute under Norwegian jurisdiction to have several 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 these.
An agreement granting a certain legal venue exclusive jurisdiction will take precedence over any statutory provisions that would otherwise have determined the venue.
If a legal action is brought before an inapplicable venue, the case will be referred to a court with territorial jurisdiction.
Time limits
Certain types of claims are subject to statutory time limits for instituting legal proceedings, in addition to the general limitation period. 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.
Final ruling and lis pendens
Another procedural condition 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 which is binding on the parties. Any opinion expressed as part of the reasoning behind an existing ruling will not be binding in separate legal proceedings as long as such proceedings pertain to a separate and distinguishable claim.
A ruling is generally only binding on the parties. An exception applies to third parties that would have been bound by an agreement between the parties relating to 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 shall also be enforceable in Norway to the extent provided by statute or agreement with said 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.
