Conflict of laws
Introduction
There is no general codification of the conflict of laws rules in Norway. As a party to the EEA Agreement, Norway has ratified and implemented the Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. However, the EEA Agreement does not regulate private international law issues, and thus the Rome I Regulation on the law applicable to contractual obligations and the Rome II Regulation on the law applicable to non-contractual obligations are not implemented in Norwegian law.
Nonetheless, there is fragmented implementation of certain conflict of laws rules from sector-specific international conventions ratified by Norway, and from certain EU directives on private law matters of relevance under the EEA Agreement.
General principles: Party autonomy and the "closest connection" test
Two general principles have a long and firm standing in Norwegian international private law. Firstly, the principle of party autonomy permits the parties to international contracts to make their own choice of governing law. This principle has been recognised repeatedly and consistently by Norwegian courts. The second principle is a "closest connection" test, calling for the court to identify which jurisdiction's law is most closely connected to the matter at hand. This principle has been affirmed by the Supreme Court, which has also emphasised the need for uniform conflict of laws rules within the EU/EEA.
In this regard, the Supreme Court has recently been more inclined to align Norwegian international private law with the specific rules laid down in the EU Rome I and Rome II Regulations. This approach by the Supreme Court has triggered a legislative initiative to introduce more general Norwegian codification of the conflict of laws rules applicable to contractual obligations. This initiative has generated a draft statute, which is currently being circulated for public consultation. The draft statute is largely based on the Rome I Regulation.
Specific Norwegian conflict of laws rules
In certain regards, conflict of laws rules have been codified in Norway by implementation of international conventions and EU/EEA legislative acts.
With regard to the sale of goods, Norway has implemented the 1955 Hague Convention on the Law Applicable to International Sales of Goods, thus recognising an express choice of governing law by the parties to such contracts, or in the absence thereof, designating the laws of the seller's domicile as the default governing law. Furthermore, Norway has also implemented the 1980 UN Convention on Contracts for the International Sale of Goods (CISG) by aligning the Norwegian Sale of Goods Act (1988) with the CISG provisions. On products liability, Norway has also implemented the 1973 Hague Convention on the Law Applicable to Products Liability.
As far as insurance contracts are concerned, Norway has implemented the conflict of laws rules of the Solvency II Directive (Directive 2009/138) Art. 178 and the Rome I Regulation (Regulation 593/2008) Art 7. This is implemented by alignments in the 1992 Act on Choice of Law for Insurance Contracts, with regard to both life and non-life insurance contracts.
In other fields of private law, the conflict of laws rules remain uncodified, although there is a distinct preference on the part of the Supreme Court to align Norwegian international private law with the Rome I and II Regulations. For torts/delicts, the principle under Rome II Art. 4 would also apply under Norwegian law: The governing law is the law of the country in which the damage occurs. For contracts relating to immovable property, the governing law is, in the absence of any choice of law by the parties, the law of the country where the property is situated (cf. Rome I Art. 4, 1.c). For contracts of carriage, the governing law will be the law of the country of habitual residence of the carrier, unless another choice of law has been agreed (cf. Rome I Art. 5). However, it must be emphasised that the Rome I and II Regulations have not been implemented in Norway law as such, and thus it cannot be taken for granted that all finer details in these regulations will apply in a completely uniform manner under Norwegian law.
Issues governed by the law of companies and other bodies – corporate or unincorporated – fall outside the scope of the Rome I Regulation (Rome I Art. 1, 2.f). Under Norwegian international private law, the governing law will be the law of the country in which a company is registered or domiciled, depending on the legal issue in question.
