Interim remedies

Jurisdiction in interim remedy matters falls outside the scope of the Lugano and Brussels Regulations, and is therefore governed by Norwegian domestic law.

A petition for an interim remedy may be filed with the District Court where the respondent is domiciled or, alternatively, with the District Court where the asset targeted by the remedy is currently located or is expected to arrive in the near future.

Petitions for arrest or preliminary injunctions must be filed with the competent court. The court shall as a general rule conduct an adversarial hearing before ruling on the petition. In matters of urgency the court may render a decision based on the applicant's submissions alone (ex parte decision). The respondent may then request a subsequent hearing in which the court re-examines the matter.

The hearing normally includes introductory statements by counsel, limited witness testimony, and closing submissions by counsel. Hearings typically las 1–5 days, depending on the complexity of the matter.

The process is intended to be swift. Ex parte decisions are normally issued within a few days. If a hearing is convened, it may take longer, primarily depending on the court's schedule and the parties' availability.

On average, a post-hearing decision is handed down within a few weeks of the petition being filed.

In complex matters, such as those pertaining to patent infringement and invalidation, the courts may decide to adjudicate the interim remedy contemporaneously with the underlying claim before the District Court to avoid hearing substantially the same case twice. This is not available where there is an urgent need for interim remedies.

The decision takes immediate effect and may be enforced upon being handed down, irrespective of the right of appeal.

If considered sufficient to safeguard the interests sought protected by the interim remedy, the respondent may avoid enforcement of the interim remedy by posting security for the petitioner's monetary interest in the remedy. Usually, security is posted by way of a bank guarantee. Adequate security will always suffice to avoid arrest.

The respondent may applyh to have the interim remedy discharged by the court by presenting new evidence demonstrating that the basis for the remedy no longer applies.

The court may also make the interim remedy conditional upon the petitioner issuing legal proceedings within a specified time to have the claim secured by the interim remedy adjudicated.

The district court's decisions may be appealed and leave to appeal may only be denied if it is apparent that the appeal has no realistic prospects of success. Normally, the appeal is decided on the basis of written submissions, without any oral hearing, although the appellate court may decide otherwise. An appeal does not have suspensive effect (a stay) unless the appelant applies for one and is granted by the court under a strict test.

The appeal is normally decided within 2-4 months of the notice of appeal being lodged.

If an interim remedy is granted, but it is later found that the underlying claim secured by the measure was without merit, the petitioner bears a strict liability for the respondent's loss resulting from the remedy. In matters in which the remedy prevents the respondent from carrying out business activities, this liability may be substantial and should be carefully considered before petitioning for interim remedies.

The court may, as a condition of granting the interim remedy, require the petitioner to post security, usually in the form of a bank guarantee, for the petitioner's potential liability for the respondent's loss arising from the remedy.

An arrest may secure a monetary claim, by imposing restrictions on the respondent's right to dispose of the arrested asset, legally and sometimes physically, to the detriment of the petitioner. It is typically used to prevent an asset that might otherwise serve as security or for the recovery of debt from being removed from Norwegian jurisdiction, sold or otherwise placed outside the creditor's reach. It should be noted that an arrest does not constitute a lien or similar security interest, that liens may be attached to an arrested asset by other creditors and that an arrest does not provide protection in the event of bankruptcy. Nor does an arrest give a right to enforce the debt.

In addition to providing the necessary documentary evidence and legal arguments, the petition, the petition must state the amount for which arrest is sought. The petitioner should also, as far as possible, identify the assets to be subjected to arrest. If the matter is urgent, e.g. if the assets are about to leave Norwegian jurisdiction, this should be stated and substantiated.

In order to be granted an arrest, the claimant must substantiate, on the balance of probabilities,

1. the merits of the monetary claim to be secured; and
2. that the respondent’s conduct gives reason to fear that collection of the debt will in the absence of arrest be impossible or considerably impeded.

For seagoing vessels and aircraft, the requirement under (2) does not apply where the petitioner holds a lien on the vessel or aircraft for an overdue claim.

If the matter is urgent, the court may grant an ex parte arrest even if the claim has not been substantiated on the balance of probabilities, in which case the petitioner will have to substantiate the claim at the subsequent hearing.

A preliminary injunction may secure a non-monetary claim by ordering the respondent to perform or refrain from certain acts.

In addition to presenting the necessary documentary evidence and the legal arguments supporting the petition, the petition should state the specific injunctive relief sought. If the matter is urgent, this fact should be stated and substantiated.

In order to obtain a preliminary injunction, the claimant must substantiate, on the balance of probabilities, the merits of the claim to be secured; and either that the respondent's conduct makes it necessary to provisionally secure the claim because the pursuit or enforcement of the claim would otherwise be considerably impeded; or it is necessary to make a temporary arrangement in respect of a disputed legal issue to avert considerable loss or inconvenience.

Moreover, a preliminary injunction may not be granted if the loss or inconvenience to the respondent is clearly disproportionate to the petitioner's interest in the interim remedy being granted.