International arbitration law and rules in Norway

1.1.1 Arbitration was regulated in a fragmentary fashion in Norwegian law until 1927. When the Norwegian Civil Procedure Act of 1915 entered into force on 1 July 1927, it contained a separate chapter on arbitration. The new legislation replaced earlier statutory provisions on arbitration but did not provide any detailed regulation of arbitration.

1.1.2 The Norwegian Civil Procedure Act (Norwegian Civil Procedure Act) was amended in connection with Norway’s ratification of the New York Convention in 1961. The amendment meant that foreign arbitration decisions under the Convention also had a binding effect in Norway. The chapter on arbitration in the Norwegian Civil Procedure Act was repealed upon the entry into force of the Norwegian Arbitration Act of 14 May 2004 no. 25 (Norwegian Arbitration Act or the Act). 1 Woxholth, Voldgift (‟Arbitration”) (2013), Chapter 1, Section 5.

1.2.1 The Norwegian Arbitration Act entered into force on 1 January 2005. The Norwegian Arbitration Act is based to a large extent on the ‟UNCITRAL Model Law on International Commercial Arbitration” (Model Law). 2 Borgar Høgetveit Berg and Ola Ø. Nisja (eds.), Avtalt prosess. Voldgift i praksis (‟Agreed practice. Arbitration in practice”), Universitetsforlaget, 2015, page 184. The Act therefore represents a high degree of harmonisation of Norwegian arbitration rules with the current international standard for arbitral proceedings. 3 Helge Jakob Kolrud et al., Voldgiftsloven. Lovkommentar, § 1. Lovens virkeområde (‟The Norwegian Arbitration Act. Legal Commentary, Section 1 – Scope of the Act”).  Unlike the Model Law, the Norwegian Arbitration Act applies to both domestic and international arbitration cases. 4 Norwegian Arbitration Act, Section 1.

1.3.1 The Norwegian Arbitration Act applies to arbitration pursuant to agreement or statute 5 Norwegian Arbitration Act, Section 1. and encompasses both arbitration conducted as institutional arbitration and so-called ad hoc arbitration. 6 See Proposition to the Odelsting no. 27 (2003 – 2004), page 28.

1.3.2 As a general rule, the Act will only apply to arbitration seated in Norway. 7 Exceptions to this general rule are enumerated in Section 1, second to fourth paragraphs of the Act. However, this does not prevent the parties from taking steps in legal proceedings, negotiating or conducting meetings outside Norway. 8 See Norwegian Arbitration Act, Section 22.

1.3.3 Certain provisions of the Act will apply where the parties have agreed on an arbitration venue other than Norway and, in some instances, where an arbitration venue has not been agreed. This includes provisions related to:

• The court’s handling of legal actions concerning legal relationships that are subject to arbitration,
• Questions regarding provisional security under Chapters 32-34 of the Norwegian Dispute Act 9 Act relating to mediation and procedure in civil disputes (The Dispute Act) (LOV-2005-06-17-90) 2005,
• The court’s decisions related to the appointment of the arbitral tribunal,
• Recognition and enforcement of arbitration awards. 10 See Norwegian Arbitration Act, Section 1, second to fourth paragraphs.

1.3.4 In line with the general principle of party autonomy, the rules of the Norwegian Arbitration Act may be contractually derogated from, unless otherwise stated in the Act. Provisions that cannot be contractually derogated from generally involve those that establish key rights for the parties, such as Section 20 regarding equal treatment of the parties, or intervention by the courts where an arbitration award is invalid, see Norwegian Arbitration Act, Sections 42 and 43. 11 Helge Jakob Kolrud et al., Voldgiftsloven. Lovkommentar, § 2. Adgangen til å fravike lovens regler ved avtale (‟The Norwegian Arbitration Act. Legal Commentary, Section 2. Derogation from the provisions in the Act”).

1.4.1 Section 9 of the Norwegian Arbitration Act establishes by law that the freedom to agree to arbitration follows from the general freedom of parties to determine their own legal relationships by agreement. However, certain requirements apply depending on the subject of the arbitration. 12 In addition to the requirements stated in this section, certain special provisions apply in order to allow disputes to be decided by arbitration when it comes to consumer matters. This will not be pursued in this context.

1.4.2 Firstly, only ‟disputes concerning legal relationships” may be decided by arbitration. This means that only disputes the courts can decide on may be decided by arbitration. Among other things, this will mean that disputes that only involve factual circumstances will fall outside the scope of the Act.

1.4.3 Secondly, an identification requirement applies in that arbitration may only be agreed for disputes that have arisen or may arise in a particular legal relationship, i.e. the parties cannot agree that, for example, all future legal disputes between them shall be subject to arbitration. 13 Norwegian Arbitration Act, Section 10.

1.4.4 Thirdly, it is required that the parties have an unrestricted right of disposition in respect of the dispute. Simply stated, it is required that the parties are entitled to exercise control over their own legal positions. This exception has less practical significance for commercial relationships, but it does affect criminal cases, divorce and separation proceedings and the validity of official legislative acts. 14 See Helge Jakob Kolrud et al., Voldgiftsloven. Lovkommentar, § 9. Gjenstand for voldgift (‟The Norwegian Arbitration Act. Legal Commentary, Section 9. Scope of the arbitration”).

2.1.1 Section 10 of the Norwegian Arbitration Act establishes the general rule that the parties may agree arbitration for disputes that have arisen or may arise in a particular legal relationship. No general requirement is imposed for the arbitration agreement to be in written or other form. Whether an arbitration agreement has been made depends, therefore, on the general rules on entering into agreements and the interpretation of agreements.

2.1.2 In certain cases, however, requirements are imposed for clarity. Section 31, third paragraph of the Norwegian Arbitration Act, stipulates that arbitral tribunal only has jurisdiction to make decisions ex aequo et bono, or as “amiable compositeur”, only if the parties have ‟expressly” authorised it to do so. The Act imposes no formal requirements for such authorisation or that it be in writing, but the authorisation must be ‟express”. There is thus a requirement for clarity, which indicates that the authorisation should be in writing. 15 Helge Jakob Kolrud et al., Voldgiftsloven. Lovkommentar, § 31. Rettsanvendelsen (‟The Norwegian Arbitration Act. Legal Commentary, Section 31. Application of law”).

2.1.3 The general rule on the absence of formal requirements is derogated from when one party to the arbitration agreement is a consumer. In such cases, the arbitration agreement must be incorporated in a separate document and signed by both parties. The agreement may be made electronically if a satisfactory method is used to authenticate the making of the agreement and to ensure the content of the agreement. Furthermore, only an arbitration agreement entered into before a dispute arises is binding on a consumer. 16 Norwegian Arbitration Act, Section 11.

2.2.1 The Norwegian Arbitration Act contains no general provisions on who is personally able to enter into an agreement on arbitration.

2.2.2 However, Section 43 of the Norwegian Arbitration Act states that an arbitration award may be set aside if one of the parties to the arbitration agreement lacks the legal capacity to act, or where the agreement is invalid under other rules that apply. In practice, this means that certain minimum requirements are imposed for the parties to the agreement, including that a person who lacks the legal capacity to act, and therefore cannot enter into binding agreements, cannot enter into an arbitration agreement either.

2.3.1 As mentioned, only ‟disputes concerning legal relationships” in respect of which the parties have an ‟unrestricted right of disposition” may be determined by arbitration. The Act also establishes some modest limitations on the parties’ freedom to contract, in the form of mandatory provisions related to:

• The scope of application of the Act and derogation from it; 17 See Norwegian Arbitration Act, Sections 1 and 2.
• A party’s right to raise an objection that the arbitration proceedings are not in accordance with the agreement or the Act; 18 Norwegian Arbitration Act, Section 4.
• The authority of the courts to consider disputes that are subject to arbitration; 19 Norwegian Arbitration Act, Chapter 2 and Sections §§ 2-43, 46 (2), 47.
• Possible subjects of arbitration; 20 Norwegian Arbitration Act, Section 9.
• Special rules related to consumer matters; 21 Norwegian Arbitration Act, Section 11.
• Matters related to objections raised against arbitrators and the arbitrators’ failure to comply; 22 Norwegian Arbitration Act, Sections 14 and 16.
• The arbitral tribunal’s jurisdiction to decide its own jurisdiction; 23 Norwegian Arbitration Act, Section 18.
• The principle of equal treatment and the adversarial principle; 24 Norwegian Arbitration Act, Section 20.
• The arbitral tribunal’s power to resist the parties’ request to issue a binding award in line with the parties’ settlement; 25 Norwegian Arbitration Act, Section 35.
• Rules on when an arbitral proceeding is considered terminated; 26 Norwegian Arbitration Act, Section 37.
• Rules on recognition and enforcement of arbitral awards. 27 Norwegian Arbitration Act, Sections 45-46.

2.4.1 Unless the parties have otherwise agreed, an arbitration agreement will accompany an assignment of the legal relationship covered by the agreement. 28 Norwegian Arbitration Act, Section 10.

2.5.1 The clear general rule under Section 31 of the Norwegian Arbitration Act is that the parties themselves may agree which legal rules are to be the basis for the decision. It may be agreed that statutes/regulations that have not entered into force will apply and that the legal rules of other countries will apply. 29 Helge Jakob Kolrud et al., Voldgiftsloven. Lovkommentar, § 31. Rettsanvendelsen (‟The Norwegian Arbitration Act. Legal Commentary, Section 31. Application of law”). In other words, the parties have a great deal of freedom with respect to the choice of legal rules.

2.5.2 Under Section 31, second paragraph of the Norwegian Arbitration Act, the arbitral tribunal shall apply the Norwegian conflict of laws rules if the parties have not agreed which legal rules are to apply in order to resolve the dispute.

2.5.3 If the parties choose to refer to another country’s laws or legal systems, this reference must be regarded as a reference to that country’s substantive legal rules and not the conflict of laws rules. However, this does not apply if something else is stated in the agreement.

2.6.1 The parties may agree that they will make use of the rules of an arbitration institution. In Norway, the Oslo Chamber of Commerce (OCC) Arbitration and Alternative Dispute Resolution Institute (Institute) has prepared rules for arbitration and fast-track arbitration (Arbitration Rules).

2.6.2 The Arbitration Rules were last updated on 1 January 2017. 30 The rules are at chamber.no, ‟Regler for Oslo Chamber of Commerce Institutt for Voldgift og Alternativ Tvisteløsning”, link: https://chamber.no/tjenester/tvistelosning-og-voldgift/voldgiftsregler/ (Norwegian) and https://en.chamber.no/tjenester/tvistelosning/regelverk/ (English).  Article 2 of the Arbitration Rules provides that the parties may derogate from the Arbitration Rules by agreement. The same provision states that the Arbitration Rules are supplemented by the Norwegian Arbitration Act if the arbitration takes place in Norway. This means that the Norwegian Arbitration Act will apply if the Arbitration Rules conflict with mandatory provisions in the Act, are silent on a question or if the parties have agreed to it.

2.6.3 If the parties have agreed to arbitration pursuant to the UNCITRAL Arbitration Rules, the arbitral proceeding will be subject to the rules in force at the commencement of the arbitration case, with the Institute as ‟appointing authority”, see Article 2 of the Arbitration Rules.

2.6.4 Article 33 of the Arbitration Rules states that the arbitral tribunal will determine its own compensation and settlement of its expenses based on the fee table applicable at any time for the Institute. The system represents a greater degree of predictability for the parties.

2.6.5 The Arbitration Rules are available in their entirety in Norwegian and English on the OCC website. 31 Chamber.no, links: https://chamber.no/tjenester/tvistelosning-og-voldgift/voldgiftsregler/ (Norwegian) and https://en.chamber.no/tjenester/tvistelosning/regelverk/ (English).

3.1.1 It is up to the parties how many arbitrators they wish to have. 32 Norwegian Arbitration Act, Section 12.  If the parties have not decided anything, Section 12 of the Norwegian Arbitration Act stipulates that the arbitral tribunal as a general rule shall consist of three arbitrators. The Act corresponds to Article 10 of the UNCITRAL Model Law.

3.1.2 There is no limitation on how many arbitrators may be agreed, except that the arbitral tribunal must consist of an odd number. If the dispute involves small amounts, it might be considered disproportionately expensive to have three or more arbitrators. 33 Proposition to the Odelsting no. 27 (2003-2004).

3.1.3 Section 13, paragraphs 2-4 of the Norwegian Arbitration Act provides detailed rules for the selection process. The general rule is that the arbitral tribunal is to be appointed jointly by the parties. It is generally advantageous if the parties can agree on the arbitral tribunal in its entirety, as the tribunal generally will have less party affiliation and more independence. 34 Proposition to the Odelsting no. 27 (2003-2004).  If the parties do not jointly agree on the composition, and the arbitral tribunal is to be set at three arbitrators, each party appoints one member. The members will then jointly appoint the chairperson of the arbitral tribunal. However, these rules may be derogated from by agreement.

3.1.4 Section 13, paragraph 4 of the Norwegian Arbitration Act, provides that each of the parties may request that the district court appoints any absent arbitrator(s), if the arbitral tribunal cannot establish itself under the agreement or Section 13, paragraphs 2-3. For example, this may be the case if one party has not named an arbitrator before the deadline. If only one of the parties has not appointed its arbitrator, the district court shall appoint only the arbitrator that is absent and not the entire arbitral tribunal. 35 Proposition to the Odelsting no. 27 (2003-2004).

3.2.1 Section 13, paragraph 1 of the Norwegian Arbitration Act, sets some fundamental requirements for the arbitrators. They must be impartial and independent of the parties, and they must be qualified for the office. 36 Norwegian Arbitration Act, Section 13.  The provision corresponds to the most essential parts of Article 11 of the UNCITRAL Model Law. 37 Helge Jakob Kolrud et al., Voldgiftsloven. Lovkommentar, § 13. Oppnevning av voldgiftsretten (‟The Norwegian Arbitration Act. Legal Commentary, Section 13. Appointment of arbitrators”), Juridika (copied 30 September 2021) https://juridika.no/lov/2004-05-14-25/%C2%A713/kommentar

3.2.2 Under Section 14, a person who is contacted regarding a possible appointment as an arbitrator shall provide information of his or her own accord regarding circumstances likely to give rise to justifiable doubts about that person’s impartiality or independence. The provision is based on Article 12 of the UNCITRAL Model Law. 38 Helge Jakob Kolrud et al., Voldgiftsloven. Lovkommentar, § 14. Innsigelsesgrunner mot voldgiftsdommere, (‟The Norwegian Arbitration Act. Legal Commentary, Section 14. Grounds for challenge of arbitrators”), Juridika (copied 30. September 2021) https://juridika.no/lov/2004-05-14-25/%C2%A714/kommentar

3.2.3 Objections to an arbitrator may only be made if there are circumstances that give rise to justifiable doubts about the arbitrator’s impartiality or independence, or if the arbitrator lacks qualifications as agreed between the parties. 39 Norwegian Arbitration Act, Section 14, paragraph 2, first sentence.

3.2.4 If one of the parties has been involved in appointing an arbitrator, an objection may only be made on the basis of circumstances the party becomes aware of after the appointment. 40 Norwegian Arbitration Act, Section 14, paragraph 2, last sentence.

3.3.1 If an arbitrator’s mandate terminates, either because an objection has been made against the arbitrator under Section 15 or it becomes legally or factually impossible for the arbitrator to fulfil his or her assignment under Section 16 or the arbitrator withdraws for another reason, a new arbitrator shall be appointed. 41 Norwegian Arbitration Act, Section 17, paragraph 1.

3.3.2 The new arbitrator is appointed under the rules used for the appointment of the arbitrator who is to be replaced. 42 Norwegian Arbitration Act, Section 17.

3.3.3 These rules may be derogated from by agreement. 43 Norwegian Arbitration Act, Section 17, final paragraph.

3.4.1 Section 39 of the Norwegian Arbitration Act states that the arbitral tribunal will determine its own compensation and settlement of its expenses, unless otherwise agreed between the parties and the arbitral tribunal.

4.1.1 Section 18, paragraph 1 of the Norwegian Arbitration Act, provides that the arbitral tribunal itself decides questions regarding its jurisdiction, including objections to the existence or validity of the arbitration agreement. The provision corresponds to Article 16 of the Model Law. If one of the parties has objections as to the existence or validity of the arbitration agreement, it is the arbitral tribunal that has the jurisdiction to decide on such objections. This also applies if it is alleged that the agreement between the parties is invalid. The first paragraph thus establishes the general principle of competence to rule on jurisdiction. 44 Helge Jakob Kolrud et al., Voldgiftsloven. Lovkommentar, § 18 Voldgiftsrettens avgjørelse av egen domsmyndighet (‟The Norwegian Arbitration Act. Legal Commentary, Section 18. Competence of the arbitral tribunal to rule on its jurisdiction”).

4.1.2 Under Section 18, paragraph 2 of the Norwegian Arbitration Act, an arbitration agreement is to be considered an independent contract. This means that the arbitral tribunal’s decision that the contract is invalid does not in itself result in the arbitration agreement being invalid. The consideration behind the rule is the principle of severability, which is necessary for the arbitral tribunal to decide its own jurisdiction.

4.1.3 Any objection that the arbitral tribunal lacks jurisdiction must be made no later than the party’s first submission on the merits of the claim. A later objection may be permitted if the party is not materially to blame for it not being presented earlier. 45 Norwegian Arbitration Act, Section 18, paragraph 3. In the assessment of materiality, it will be difficult to accept an objection made after the deadline if the matter involves an area in which arbitration is common, where the parties have earlier experience of arbitration or if they are represented by a lawyer. On the other hand, there will be more leeway in minor disputes or where the party is unfamiliar with arbitration. 46 Helge Jakob Kolrud et al., Voldgiftsloven. Lovkommentar, § 18 Voldgiftsrettens avgjørelse av egen domsmyndighet (‟The Norwegian Arbitration Act. Legal Commentary, Section 18. Competence of the arbitral tribunal to rule on its jurisdiction”).

4.2.1 A party has two options for obtaining provisional security while an arbitration is pending. Provisional security may either be requested before the Norwegian general courts under Section 8 of the Norwegian Arbitration Act, or interim measures may be requested directly from the arbitral tribunal under Section 19.

4.2.2 Under Section 19 of the Norwegian Arbitration Act, the arbitral tribunal may order, at the request of one of the parties, any party to take ‟interim measures” that the arbitral tribunal finds necessary. The provision corresponds to Article 17 of the Model Law. The phrase ‟interim measures” encompasses any order or prohibition on conduct, as well as procedural measures such as securing evidence. 47 Helge Jakob Kolrud et al., Voldgiftsloven. Lovkommentar, § 19 Voldgiftsrettens adgang til å beslutte midlertidige tiltak (‟The Norwegian Arbitration Act. Legal Commentary, Section 19. The power of the arbitral tribunal to order interim measures”).  It is nevertheless worth noting that such interim measures are not a basis for enforcement under the Norwegian Enforcement Act 48 Act of 26 June 1992 No. 86. and therefore cannot be enforced. Nevertheless, in practice such measures are often followed, as the parties will want to display confidence in the arbitral tribunal.

5.1.1 Section 23 of the Norwegian Arbitration Act states that if the parties have not agreed otherwise, the arbitral proceedings shall be considered to have commenced on the date the respondent received a request that the dispute be dealt with through arbitration.

5.2.1 General duties of the arbitral tribunal

5.2.1.1 A fundamental principle which applies to ordinary legal proceedings, and which will also apply to arbitration, is that the procedure must be proper. 49 Woxholth, Voldgift (‟Arbitration”)(2013), Chapter 12, Section 2.  In addition, the adversarial principle (ie that both parties must have an opportunity to state their views) will apply to arbitration. 50 Woxholth, Voldgift (‟Arbitration”)(2013), Chapter 12, Section 2.

5.2.1.2 Section 20 of the Norwegian Arbitration Act provides that the parties are to be treated equally at all stages of an arbitral proceeding. There is no opportunity to agree limitations on the parties’ rights under this provision. An example of how this will apply in practice is that the parties cannot invoke a clause that provides for one of the parties to appoint more arbitrators than the other. 51 Proposition to the Odelsting no. 27 (2003-2004), page 97.

5.2.2 General duties of the parties

5.2.2.1 The disposition principle and the principle of party presentation also apply to the arbitration. 52 Woxholth, Voldgift (‟Arbitration”) (2013), Chapter 12, Section 2.

5.2.2.2 The disposition principle is based on the parties being the owners of the case. The principle of party presentation is an extension of the disposition principle and is based on the parties having primary responsibility for obtaining evidence and accounting for factual matters. 53 Woxholth, Voldgift (‟Arbitration”)(2013), Chapter 12, Section 2.  The principle of party presentation is established in Section 28, paragraph 1 of the Norwegian Arbitration Act, where it is stated that the parties are responsible for substantiating the case and are entitled to present such evidence as they wish.

5.2.2.3 In addition, the Norwegian Arbitration Act establishes the parties’ autonomy. Firstly, the arbitral tribunal is required to handle the case within the framework of the parties’ agreement and the Norwegian Arbitration Act. Secondly, the Act provides that the arbitral tribunal may only decide the claims that have been raised in the case: unless otherwise agreed, the decision must fall within the scope of the parties’ prayers for relief and the tribunal may only base its decision on the grounds invoked in the prayers for relief. 54 Norwegian Arbitration Act, Section 32.

5.2.2.4 The parties therefore have a duty to substantiate the case and to set frameworks for the arbitral tribunal’s decisions.

5.2.3 Procedural powers of the arbitral tribunal

5.2.3.1 The arbitral tribunal may decide to deal separately with one or more claims in the case or regarding one or more matters in dispute. The tribunal may also separately adjudicate one or more claims, part of a claim or the basis for a claim when it leads to the determination of a claim. This is indicated in Section 33 and the provision is non-mandatory.

5.3.1 Immediately upon appointment of the arbitral tribunal, the tribunal or the chairperson shall draw up a plan for the further conduct of the case following discussion with the parties, unless otherwise agreed. 55 Norwegian Arbitration Act, Section 21.

5.3.2 The general rule is that the parties are to decide where the arbitral tribunal will sit. If an arbitration venue has not been agreed, the arbitral tribunal shall decide on the venue under Section 22. When choosing a location, the practical handling of the case shall be considered, with particular emphasis on the parties’ opportunity to participate in the oral proceedings.

5.3.3 Under Section 22, paragraph 2 of the Norwegian Arbitration Act, the arbitral tribunal may hold meetings where it considers most appropriate, irrespective of the arbitration venue (and thus irrespective of whether the parties have agreed an arbitration venue). However, the parties may agree otherwise.

5.3.4 Section 24 of the Norwegian Arbitration Act establishes the general rule that the parties are to decide on the language for the arbitration. If the parties have not agreed anything, the arbitral tribunal shall decide on the language for the arbitration. If the language for the arbitration is Norwegian, Swedish or Danish may also be used. Under paragraph 3 of the provision, the language for the arbitration is to be used in any written statement from the parties, in oral proceedings and in decisions and other communications from the arbitral tribunal. Under paragraph 4, the arbitral tribunal may require that written evidence be translated to the languages the parties have agreed on, or the language the arbitral tribunal has chosen. However, Section 24, paragraphs 2-4 of the Norwegian Arbitration Act may be derogated from by agreement.

5.4.1 Under Section 25 of the Norwegian Arbitration Act, the claimant must submit the particulars of the claim(s) to the arbitral tribunal within the deadline that has been set. The particulars must include a prayer for relief, a claim and the factual and legal justification for the claim, as well as the evidence the party wishes to present. If a claimant fails, without reasonable cause, to submit the particulars of the claim(s), the arbitral tribunal shall terminate the arbitration. 56 Norwegian Arbitration Act, Section 27, first paragraph.

5.4.2 The respondent must submit a response to the particulars of the claim to the arbitral tribunal by the deadline that has been set. The party must either accept or contest the claimant’s claim and state any objections to the arbitral tribunal hearing the case. The party must state what award outcome is desired, the factual and legal justification for the prayer for relief and the evidence the party wishes to present. 57 Norwegian Arbitration Act, Section 25, second paragraph. If the respondent fails without reasonable cause to submit a response, the hearing of the case shall continue as normal. 58 Norwegian Arbitration Act, Section 27, second paragraph. Other failures, such as not attending an oral proceeding or not submitting documentary evidence, will result in the proceeding continuing, with the consequence that the party will not be allowed to present its case.

5.4.3 If a party fails, without reasonable cause, to attend an oral proceeding or fails to submit documentary evidence, the arbitral tribunal may continue the hearing and issue an award on the existing basis. 59 Norwegian Arbitration Act, Section 27, third paragraph.  However, this may be derogated from by agreement. 60 Norwegian Arbitration Act, Section 25, third paragraph, and Section 27, fourth paragraph.

5.4.4 A party may present new claims, expand upon prayers for relief and present new bases for claims and evidence, unless otherwise agreed. However, such changes may be denied by an arbitral tribunal out of consideration for the progress of the case or other compelling circumstances. 61 Norwegian Arbitration Act, Section 25, fourth paragraph.

5.5.1 If the parties have not otherwise agreed, Section 26 provides that the arbitral tribunal shall decide whether the case is to be heard orally or in a written proceeding. Given that the parties are to have a full opportunity to present their case under Section 20, oral presentation of the case is the most common. With oral explanations, the parties have a greater opportunity to clarify and specify, as well as respond to, questions on the spot. This is therefore generally preferred, even though a written proceeding requires fewer resources and is more economical. 62 Helge Jakob Kolrud et al., Voldgiftsloven. Lovkommentar, § 26 Muntlig og skriftlig behandling (‟The Norwegian Arbitration Act. Legal Commentary, Section 26. Oral hearings and written proceedings”).

5.5.2 Even if the arbitral tribunal has decided that the hearing is to be in writing, a party may request an oral hearing under Section 26, paragraph 1, second sentence.

5.6.1 As mentioned, the parties are responsible for the presentation of evidence and are entitled to present the evidence they wish. However, the arbitral tribunal may disallow evidence that ‟is obviously irrelevant” to the determination of the case. The tribunal may also disallow evidence that is not reasonably proportionate to the importance of the dispute. However, this may be derogated from by agreement.

5.6.2 The principle of free evaluation of the evidence stated in Section 32, second paragraph, leaves it up to the arbitral tribunal as to what can be inferred from the evidence that has been presented. However, this may be derogated from by agreement.

5.6.3 Unless otherwise agreed, the arbitral tribunal has the option to appoint experts and can require that the parties provide the expert with all the relevant information, including access to evidence, see Norwegian Arbitration Act, Section 29.

5.7.1 For many parties, confidentiality can be a key rationale for agreeing that a dispute is to be resolved through arbitration and not go before the general courts. However, the general rule under Section 5, paragraph 1 of the Norwegian Arbitration Act is that the arbitral proceedings and the arbitral tribunal’s decisions are not subject to a confidentiality obligation.

5.7.2 If the parties desire secrecy concerning the dispute, this is something that must be agreed. The general rule provides that an agreement on confidentiality must be entered into for each case as it arises and, therefore,  this means that a general clause on confidentiality in the arbitration agreement that has been entered into before an actual legal dispute materialises may not be sufficient. It is unclear how this question will be resolved if it is put to the test. Nonetheless, if the parties know that they generally will not want conflicts to become public they should include such a clause in the arbitration agreement. 63 Helge Jakob Kolrud et al., Voldgiftsloven. Lovkommentar, § 5. Taushetsplikt og offentlighet (‟The Norwegian Arbitration Act. Legal Commentary, Section 5. Confidentiality and public access”).

5.7.3 The parties may agree to confidentiality on all or parts of the proceeding or the award. If no confidentiality obligation is agreed, each party will be able to choose freely to allow third parties to gain insight into the arbitral proceedings and the award.

5.7.4 The general rule is the opposite when it involves third-party access and ability to witness the proceedings. Section 5, paragraph 2 of the Norwegian Arbitration Act provides that third parties may only be present during the arbitral proceedings at agreed times and to the extent agreed between both parties.

6.1.1 If the parties have not agreed otherwise, the arbitral tribunal shall decide matters by a majority vote under Section 34. If it is not possible to reach such a majority vote, the vote of the arbitral tribunal chairperson is decisive.

6.1.2 If a minority of the arbitrators should refuse to participate in the voting, the remaining arbitrators may reach a decision under Section 34, paragraph 2. However, something different may be agreed.

6.1.3 An arbitral proceeding is terminated either by a final arbitral award or a decision to terminate the arbitral tribunal. This is governed by Section 37 of the Norwegian Arbitration Act. The case shall be terminated if the claimant abandons the claim, if the parties agree or if the tribunal finds that continuing the case is unnecessary or impossible.

6.1.4 When the case is terminated, the arbitral tribunal’s authority also ceases. 64 Norwegian Arbitration Act, Section 37, final paragraph.

6.2.1 A final arbitral award means that a legally binding decision has been rendered in the proceeding. The matter therefore cannot be retried before either an arbitral tribunal or a court. If the award includes an order that is intended to be and can be enforced, enforcement may take place. 65 Woxholth, Voldgift (‟Arbitration”) (2013), Chapter 21, Section 1.1

6.2.2 Section 36 of the Norwegian Arbitration Act imposes certain minimum requirements for the arbitral award. The arbitral award must be in writing and signed by all the arbitrators. If there is more than one arbitrator, it is sufficient that the majority sign the award but the reason that not all have signed must be stated in the award. In addition, the time and place for issuing of the award shall be indicated.

6.2.3 The arbitral award must also specify the grounds on which it is based unless the award ratifies a settlement. It must be stated whether the award is unanimous or not. If not, it must be stated which tribunal member(s) disagrees and the points that are disagreed. The parties may derogate from this point by agreement.

6.2.4 The arbitral award shall be sent to the parties, unless otherwise agreed. The arbitral tribunal shall also send a signed copy to the district court for safekeeping.

6.3.1 If the parties enter into a settlement before the arbitral tribunal, the arbitral tribunal shall confirm the settlement in an arbitral award if the parties request it, see Section 35 of the Norwegian Arbitration Act. The arbitral tribunal may refuse to ratify the settlement if it ‟has reason” to object. For example, one such reason could be if the settlement is contrary to the Norwegian Competition Act or the rules of the Norwegian Taxation Act. 66 Helge Jakob Kolrud et al., Voldgiftsloven. Lovkommentar, § 35 Forlik (‟The Norwegian Arbitration Act. Legal Commentary, Section 35. Settlement”).  An arbitral award that ratifies a settlement will have the same effect as other arbitral awards.

6.4.1 Arbitral proceedings have two different types of expense. There are costs and expenditures for the arbitral tribunal (fees and other expenditures) and costs and expenditures that the parties have themselves incurred. 67 Helge Jakob Kolrud et al., Voldgiftsloven. Lovkommentar, Kapittel 8. Sakskostnader (‟The Norwegian Arbitration Act. Legal Commentary, Chapter 8. Costs”).

6.4.2 Under Section 39 of the Norwegian Arbitration Act, the arbitral tribunal determines its own fees and expenses, unless otherwise agreed. The determination is to be included in the decision and the amount will be due for payment one month after the decision is issued. The parties will be jointly liable for the arbitral tribunal’s expenses, unless otherwise agreed between the arbitral tribunal and the parties.

6.4.3 Section 40 of the Norwegian Arbitration Act grants the arbitral tribunal the power to allocate the case costs, subject to the condition that a party has requested it. The arbitral tribunal is to allocate the costs as deemed appropriate. At the request of a party, the arbitral tribunal may order another party to pay all or part of the costs a party has incurred in the case if the tribunal finds this appropriate. The allocation of case costs made by the arbitral tribunal is to be included in the decision, and the allocation is final. However, other rules may be agreed.

6.4.4 Under Section 41, the arbitral tribunal may order the parties to arrange security for the arbitral tribunal’s expenses. The UNCITRAL’s Model Law has no similar provision, but the rule is a codification of Norwegian and international arbitration practice. 68 Helge Jakob Kolrud et al., Voldgiftsloven. Lovkommentar, § 41. Sikkerhetsstillelse (‟The Norwegian Arbitration Act. Legal Commentary, Section 41. Security for costs”).  If such security is not arranged, the arbitral tribunal may choose to terminate the proceeding entirely or partially. However, the provision may be derogated from.

6.5.1 The Norwegian Arbitration Act does not govern claims for interest that the arbitral tribunal has in the event of late payment of its fees and/or expenses. However, the preparatory materials for the Norwegian Arbitration Act  indicate that the general rules on claims on interest as laid down in Norwegian Act relating to Interest on Overdue Payments 69 Act of 17 December 1976 No. 100 ) will apply.

6.6.1 Section 38 of the Norwegian Arbitration Act governs the arbitral tribunal’s power to rectify an award or issue a supplementary award. Each party may ask the arbitral tribunal, within one month after receipt of the award, to rectify an award or issue a supplementary award.

6.6.2 The arbitral tribunal may rectify an award that, due to spelling errors, arithmetic errors, typographical errors or similar obvious errors, has been formulated in a way that does not reflect the intention of the arbitral tribunal. The tribunal may also issue a supplementary award for the determination of claims that were presented during the arbitral proceeding and should have been decided, but have not been included in the award.

6.6.3 The arbitral tribunal, on its own initiative, may also make corrections within one month of issuing the award. In that case, the parties must be notified and be given an opportunity to comment.

Arbitration is a commonly used dispute resolution instrument for commercial matters. It thus functions to relieve the general courts of some work. 70 Woxholth, Voldgift (‟Arbitration”) (2013) Chapter 6, Section 1. In return, the general courts are a necessity for the institution of arbitration. The courts can use their enforcement power for the enforcement of arbitral awards, and they can provide assistance along the way before an award is issued. 71 Woxholth, Voldgift (‟Arbitration”) (2013) Chapter 6, Section 1.

7.1.1 The Norwegian Arbitration Act follows the recommendation in the Model Law that the jurisdiction the general courts have with respect to the arbitral tribunal should be expressly enacted into law. 72 Helge Jakob Kolrud et al., Voldgiftsloven. Lovkommentar, § 6. Forholdet til domstolene (‟The Norwegian Arbitration Act. Legal Commentary, Section 6. Role of the courts”). Section 6 of the Norwegian Arbitration Act states that the general courts only have authority to hear or make decisions in disputes subject to arbitration, where provided for in the Norwegian Arbitration Act. Which court has jurisdiction follows the usual substantive and venue judicial authority provisions in the Norwegian Dispute Act. If no court has jurisdiction under the rules, the Oslo District Court will have jurisdiction.

7.1.2 The jurisdiction of the general courts in arbitration cases will be expressed through the Norwegian Arbitration Act in the following ways:

• In the enforcement of the arbitration agreement;
• In the appointment of the arbitral tribunal;
• In the hearing of objections to an arbitrator on the basis of partiality;
• In the hearing of requests for temporary measures;
• Upon requests for assistance;
• In the judicial control of the proceedings and through the rules on recognition and execution.

7.2.1 Under Section 7 of the Norwegian Arbitration Act, the courts must dismiss legal actions regarding legal relationships that are subject to arbitration if a party requests dismissal no later than when the party takes up the merits of the case. The provision corresponds to Article 8 of the Model Law. However, the court shall proceed with the case if the arbitration agreement is invalid or for other reasons cannot be carried out.

7.3.1 As mentioned earlier, each party may request that the court appoint the arbitrator(s) who are absent under Section 13, paragraph 3 of the Norwegian Arbitration Act. Here, the general courts also have authority to assist the parties if they request it.

7.4.1 Section 15, paragraph 2 of the Norwegian Arbitration Act provides that an objection to an arbitrator that does not prevail before the arbitral tribunal may be brought before the general courts. However, this does not apply if the parties have agreed otherwise.

7.5.1 Under Section 8 of the Norwegian Arbitration Act, the general courts may order provisional security under Chapters 32-34 of the Norwegian Dispute Act, even if the dispute is to be resolved through arbitration. The provision is based on Article 9 of the Model Law. For the parties, it will often be more appropriate to request provisional security through Section 8 than interim measures under Section 19 because the courts have the power to enforce, whereas the arbitral tribunal does not.

7.5.2 The opportunity to obtain a preliminary injunction is closely related to the purpose behind an arbitral award, namely an efficient process. These may be some of the reasons the provision is mandatory. 73 Helge Jakob Kolrud et al., Voldgiftsloven. Lovkommentar, § 8. Midlertidig sikring (‟The Norwegian Arbitration Act. Legal Commentary, Section 8. Provisional security”).

7.5.3 The Norwegian rules on provisional security are broad and discretionary. The general courts thus have great freedom to choose which form of security is best suited to securing a claim. 74 Helge Jakob Kolrud et al., Voldgiftsloven. Lovkommentar, § 8. Midlertidig sikring (‟The Norwegian Arbitration Act. Legal Commentary, Section 8. Provisional security”).  Provisional security under the Norwegian Enforcement Act is divided into two different methods. One is attachment for securing a pecuniary claim and the other is a preliminary injunction for securing other types of claims.

7.6.1 There is also an opportunity to ask the courts for assistance for several issues under Section 30 of the Norwegian Arbitration Act.

7.6.2 Section 30, paragraph 1 of the Norwegian Arbitration Act is based on Article 27 of the Model Law and it grants the opportunity to obtain assistance in recording party statements, witness statements and other evidence. This assistance may be requested by both the parties and by the arbitral tribunal.

7.6.3 Section 30, paragraph 2 of the Norwegian Arbitration Act is a particularly Norwegian rule, which has its origin in Norway’s obligations under the European Economic Area Agreement, which entered into force on 1 January 1994 (EEA Agreement). 75 Helge Jakob Kolrud et al., Voldgiftsloven. Lovkommentar, § 30. Bistand fra domstolene (‟The Norwegian Arbitration Act. Legal Commentary, Section 30. Court assistance in taking evidence”).  Under paragraph 2, an arbitral tribunal or a party may ask for assistance from a court in submitting interpretation questions to the EFTA Court. Given that arbitration cases are often commercial and can raise difficult competitive questions, there might be a need for the EFTA Court to provide clarifying interpretations. The courts can ask the EFTA Court to provide such advisory opinions on interpretations of the EEA Agreement. However, the parties may agree otherwise.

8.1 Arbitration decisions have legal force, which means that they are final and binding. This means that an arbitration decision cannot be appealed unless it is agreed between the parties. An arbitration decision is also binding for the courts and a court that is presented with a claim that has been decided through arbitration must, as a clear rule, dismiss the claim. 76 This is presumably the effect of Sections 6, 7, 37, 45 and 46 of the Norwegian Arbitration Act.

8.2 Unless the parties have agreed otherwise, a party that is dissatisfied with the content or result of the arbitration decision must content themselves with requesting rectification and/or a supplementary award under Section 38 of the Norwegian Arbitration Act, or they must attempt to have the arbitral award declared invalid under Chapter 9 of the Act.

8.3 A party that wishes to have the arbitral award declared invalid must bring a legal action regarding this within three months from the date the party received the arbitral award. 77 Norwegian Arbitration Act, Section 44.  Section 43, paragraph 1, letters a-e of the Norwegian Arbitration Act establishes an exhaustive list of relevant grounds for invalidity, under which the court may set the decision aside if:

• one of the parties to the arbitration agreement lacked legal capacity, or the arbitration agreement is invalid under the law to which the parties have agreed to subject it or, failing such agreement, under Norwegian law; or
• the party bringing the action to set aside was not given sufficient notice of the appointment of an arbitrator or of the arbitral proceedings, or was not given an opportunity to present the party’s views on the case; or
• the arbitral award falls outside the jurisdiction of the arbitral tribunal; or
• the composition of the arbitral tribunal was incorrect; or
• the arbitral procedure was contrary to law or the agreement of the parties and it is likely that this has had an impact on the decision.

8.4 Section 43, paragraph 2 lists two absolute grounds for invalidity. When the issue of the validity of an arbitral award has been brought before the courts, the court shall of its own accord set aside the award if a) the dispute cannot be decided by arbitration under Norwegian law, or b) the award is offensive to public policy (ordre public).

8.5 If the grounds for invalidity only affect one part of the award, the invalidity will only affect that part. 78 Norwegian Arbitration Act, Section 43, paragraph 3.  Setting aside an arbitral award results in the arbitration agreement in question again becoming effective unless otherwise agreed between the parties or implied by the judgment setting the award aside. 79 Norwegian Arbitration Act, Section 44, paragraph 3.

9.1 Recognition and enforcement of the arbitral award is governed by Chapter 10 of the Norwegian Arbitration Act.

9.2 The general rule under Section 45 of the Norwegian Arbitration Act is that an arbitral award shall be recognised and may be enforced, irrespective of the country in which it has been issued. Recognition depends on a party making the arbitral award available in the original or a certified copy. Where the decision has been written in a language other than Norwegian, English, Swedish or Danish, the party must also make an authorised translation available. 80 Norwegian Arbitration Act, Section 45.

9.3 With respect to enforcement, an arbitral award may be enforced with the assistance of the authorities under the general rules on enforcement in Norwegian law. 81 The Norwegian Enforcement Act.

9.4 Section 46 of the Norwegian Arbitration Act establishes an exhaustive list of circumstances that are an obstacle to recognition and enforcement, and such recognition may only be denied if:

• one of the parties to the arbitration agreement lacked legal capacity, or the arbitration agreement is invalid under the law to which the parties have agreed to subject it or, failing such agreement, under the law of the country where the arbitral award was issued; or
• the party against whom the arbitral award is being invoked was not given sufficient notice of the appointment of an arbitrator or of the arbitral proceedings, or was not given an opportunity to present that party’s views on the case; or
• the arbitral award falls outside the jurisdiction of the arbitral tribunal; or
• the composition of the arbitral tribunal was incorrect; or
• the arbitral procedure is contrary to the law at the arbitration venue or the agreement of the parties and it is likely that the error has had an impact on the decision; or
• the arbitral award is not yet binding for the parties, or it has been temporarily or permanently set aside by a court at the arbitration venue or by a court in the country whose law has been applied in the determination of the subject of the dispute.