Year in review 2021: Litigation and Arbitration
First of all, we are proud of Jan Magne Langseth and Christian Reusch who assisted Bank Norwegian in a principle matter before the Supreme Court of Norway between Ikano Bank et al versus Bank Norwegian. The case concerned the use of competitor’s brands in key word advertising on Google. Ikano Bank and two banks in the consumer loan market demanded that Bank Norwegian’s advertising on the Internet using the banks’ characteristics as paid keywords should be prohibited pursuant to the general clause of the Marketing Act. The principle character of the case was demonstrated by the support from Virke, The Federation of Norwegian Enterprise, in favor of the three claimants. Bank Norwegian was supported by Google LLC.
In the judgment of 14 December 2021, the Supreme Court concluded that there was no basis for banning Bank Norwegian’s advertising practice, and awarded Bank Norwegian their legal costs. The Supreme Court took as its point of departure that the European Court of Justice had assessed similar advertising practice on the basis of trademark law and in several decisions concluded that the use of other people’s characteristics in search engine advertising does not involve trademark infringement. The Supreme Court concluded that, based on the case law of the European Court of Justice and the balancing of considerations made under the trademark regulations, there was no reason to prohibit the practice as contrary to good business practice under the Marketing Act.
Further, the team’s shipping litigation lawyers have been arguing some major cases during 2021, where the Chechire case is indeed worth mentioning. In November 2021, the Norwegian Appeal Court (Borgarting) handed down their Judgment in the MV «Cheshire»-litigation. Simonsen Vogt Wiig by Frithjof Herlofsen and Børge Alsvik successfully argued the case on behalf of a fertiliser producer against the owners and charterers of the vessel. The total amount awarded to the fertiliser manufacturer, including compensation for the loss of cargo and all associated costs, amount to approximately USD 30 000 000. See this article for more background.
Thirdly, litigation specialist Tage Skoghøy has arguing some principled decisions before the courts during 2021. Amongst other, he assisted Norsk Butikkdrift AS, a wholly owned subsidiary of Coop SA, in a case against Oda Norway AS before the court of appeal (Eidsivating, not final).The case was divided, where Skoghøy successfully argued that the claim was time barred. The question at hand was if the limitation period started to run at takeover of the lease object, or at the later date when the Norwegian Food Safety Authority came to a decision stating deviations from public regulations. The court of appeal ruled that the limitation period started to run at take over. Skoghøy has also assisted the airline companies Norwegian and Widerø in principal matters relating to the EC regulation on the passivity norms place in Norwegian law, as an addition to the limitation rules.
Furthermore, the team’s construction law specialist Andreas Falch Haugland has litigated some challenging cases before the courts during 2021. He has with success argued cases relating both to reduced productivity (Gulating) and acceleration cost (district court, not final), where the courts rules in favor the contractors claim for an adjustment of the amount payable, and also awarded the contractors their legal costs. The acceleration costs was a result of a rejected claim for a deadline extension due to the Covid-19 pandemic, and thus of great relevance for a number of contractors and clients all across the country. In addition, the relationship between NS 8407 section 15.2 and 33.3 has become a highlighted legal question due to the public regulations during the pandemic, which also was a significant question in this case
Last, but not least, we are very proud of insurance law specialist Frithjof Herlofsen, who recently was appointed as leader of the Norwegian law committee on insurance law, and civil procedure law specialist Christian Reusch who recently was re-appointed as leader og the Norwegian law committee on civil procedure and arbitration. Congratulations to Frithjof and Christian!