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Year in Review: Dispute Resolution

2020 has been an extraordinary year due to the Covid-19 pandemic. When the Norwegian society, including the courts of law, closed down on 12 March 2020, most employers ordered their employees to work from home and most oral hearings were cancelled. This required people and institutions to come up with new solutions, resulting in pragmatic developments – particularly within digitalisation.

To avoid a complete halt in critical functions in society, the government proposed a new law, the Corona Law, which provided the government with the authority to give regulations that were contradictory to statutory law. The most prominent feature on the field of litigation was the court’s new ability to decide that an oral hearing should be held by the use of videoconference. Furthermore, the Supreme Court also showed their ability to adapt quickly to the new situation. Firstly, the Supreme Court established a third, temporary department to process cases virtually. Secondly, the Supreme Court made use of the possibility of written proceedings in certain cases where it is deemed fair and reasonable under the Norwegian Dispute Act. The purpose of these changes was to avoid the accumulation of cases after the courts were under temporary shutdown earlier this year.

The new temporary rules that facilitate the use of video hearings have a range of benefits. Firstly, they have secured the adjudication of cases while simultaneously limiting the spread of COVID-19. Without the temporary rules, the courts would only have been able to handle a small number of cases by using their largest courtrooms and strictly limiting access of the participants. Secondly, video hearings enable easier access for the public to follow the oral hearings, and as there are no travel expenses, it contributes to keeping costs down.

Given this, the outbreak of COVID-19 has resulted in a rapid digitalisation of dispute resolution, making it possible to combine video hearings and physical appearance in the courtroom. Regardless of whether video hearings will be made more permanent, the current situation has provided us with valuable experience on this field. By taking this digital leap, the Norwegian courts may be able to limit their backlogs, even in these times of combatting COVID-19.

Despite 2020 being a challenging year, the corona law and digitalisation has made it possible for the SVW litigation team to continue with their litigation processes; combining both video and physical hearings. Looking back, 2020 has been an exciting and interesting year for our litigation team. Below you will find a speedy flashback to some of our litigation highlights during 2020:

  • The Norwegian Supreme Court concluded, in a judgment of 20 April 2020, that a bank did not have legal protection for its mortgage in accounts receivables. The debtor had entered into bankruptcy proceedings. The Supreme Court concluded that to gain legal protection in the bankruptcy proceedings in Norway, the bank had to have registered the mortgage in the Register of Mortgaged Movable Poperty. Notice to the clients of each accounts receivable was not sufficient, although it would have been sufficient to gain legal protection under the agreed jurisdiction for the loan. SVW assisted the bankruptcy estate before the Supreme Court.
  • The Norwegian courts, with the Supreme Court as the last instance in a decision of 30 September 2020, have confirmed that the Lugano Convention article 5 no. 3 grants jurisdiction to the courts where the alleged harmful act had occurred, even if the claim is for a negative declaration related to libel committed via Twitter. SVW are assisting the Norwegian citizen who initiated the proceedings in Norway to obtain a negative declaratory judgment. The courts confirmed that since the Norwegian citizen lived here and had stayed here when the alleged libelous statements were published, the harmful acts had occurred in Norway, and Norwegian courts therefore had jurisdiction.
  • The Norwegian Supreme Court concluded, in a decision of 14 December 2020, that there is no time limit for complaining and submitting a claim for standard compensation for delayed flights. Since the law did not prescribe any time limit (apart from the three year limitation period), the question was if such a time limit could be found in general Norwegian contract law principles, and, if so, whether such a time limit could be applied to claims for standard compensation for delayed flights (equivalent to Högsta Domstolen’s ruling, T 2659-17, under Swedish law). The Supreme Court stated that there were not sufficient reasons to require a claim to be made within a certain time limit. SVW acted on behalf of the Federation of Norwegian Aviation Industries (NHO Luftfart), who had intervened as a third-party intervener in the case on Finnair’s side.
  • In a decision 21 December 2020 (HR-2020-2469-A), the Norwegian Supreme Court clarified important aspects of Norwegian procedural law regarding disclosure of evidence. Simonsen Vogt Wiig successfully acted on behalf of a fertiliser producer against a shipowner and its P&I Club Gard. The underlying dispute relates to the MV “Cheshire”-incident in 2017, where a cargo of fertiliser was subject to a major decomposition resulting in a total loss of both the cargo and the vessel. The carriers had requested the delivery of 2000 kg fertiliser from the cargo producer to perform unilateral testing, without the presence of any representatives from the cargo-side. In the 21 December 2020 decision, the Supreme Court agreed with the fertiliser producer’s appeal and overturned the Appeal Court’s decision. The Supreme Court clarified that Norwegian courts, while granting access to evidence, may be under an obligation to set conditions to safeguard both parties’ interests when granting access to evidence. In this respect, the Supreme Court recognised the cargo interests’ legitimate need for efficient contradiction by observing the contemplated tests.

This article is part of a series of articles where the different practice groups in SVW will summarize the most important regulatory happenings in Norway in 2020.