🇳🇴 Norway

11    NORWAY

11.1    NORWAY, EEA AND EU

Norway is not a member of the European Union (EU). However, Norway is a member of the European Economic Area (EEA). EEA comprises three of four member states of the European Free Trade Association (EFTA) (Iceland, Liechtenstein and Norway) and 27 of 28 member states of the European Union (EU).

The EEA allows the EFTA states to participate in the EU’s Internal Market without being members of the EU. Due to EEA, the EFTA states adopt almost all EU legislation related to the single market, except laws on agriculture and fisheries. However, they also contribute to and influence the formation of new EEA relevant policies and legislation at an early stage as part of a formal decision-shaping process.

11.2    GENERAL

11.2.1    Introduction

National legal procedures are only harmonized to a limited extent within the EEA. Each country is relatively free to set the rules for procedures conducted before its national courts. However, states must act in accordance with the general and overarching principles, in particular drawn from the European Convention on Human Rights.

The civil procedure in Norway can be summarized as follows:

  • The Dispute Act. Civil Law procedure in Norway is governed by the Act relating to mediation and procedure in civil disputes (the Dispute Act). The Dispute Act is based on the fundamental process principles of the European Convention on Human Rights Article 6.
  • Intellectual property rights. The Dispute Act was amended in 2013 to improve the enforcement of intellectual property rights(IPR). The amendment aims to make it easier to reveal IPR infringements by (upon due cause) granting the right holder a right to information regarding origin and distribution network of infringing goods and services.

A request for information may also be directed to others than the infringer, hereunder those who have been dealing with goods or services that constitute an infringement. A request for information may also be made in connection with ongoing litigation or preparation for such.

In short, there is now a quite far-reaching obligation of disclosure whether a case is before the courts or not.

11.2.2    Legal profession – the lawyer

Entry to the legal profession is exclusively through university education. Law studies usually take five years and result in a master degree in law.

A law graduate must have a license to practice after finishing Norwegian law school, which is usually obtained by working in a law firm for a period of at least two years. Graduates are required to litigate three civil cases before a national court before a license will be issued.

A licensed practicing jurist in Norway is called an ”advokat”. An ”advokat” may render advice to clients within all fields of the law and is also allowed to appear before all Norwegian courts in the first two instances. However, it requires a special license to appear before the Supreme Court.

There is no distinction in Norway between practicing lawyers similar to the distinction between barristers and solicitors in some common law countries.

11.3    THE COURT SYSTEM

11.3.1    Introduction

There are in Norway three regular court instances, plus a “zero” level Conciliation Boards, for smaller disputes.

11.3.2    The Conciliation Boards (level “zero”)

The aim of the Conciliation Board is to reach a settlement between the parties.

In each of Norway’s 430 municipalities, there is a Conciliation Board consisting of lay conciliators.

Conciliation Boards handle a large volume of cases, mostly debt claims, and enable many smaller disputes to be resolved in an expeditious and economical manner.

Civil disputes must as a general rule be brought before a Conciliation Board before a summons can be issued in the City or District Court. However, there are a number of important exceptions to this rule, the most practical one being that conciliation proceedings are not necessary when both parties have been assisted by a lawyer and the subject matter of the case has a value in excess of NOK 125.000.

The Conciliation Board is also competent to pass judgment in most types of cases. Judgments of the Conciliation Board may be appealed to the City or District Court.

Please see section a) for further description of the process in the Conciliation Boards.

11.3.3    Court Assisted Mediation

The City or District Court and the Court of Appeal must offer the parties judicial mediation.

If the parties reach an agreement, the settlement may be concluded as an in-court settlement, which is recorded in the judicial mediation record. If the case is not resolved by mediation, it will be heard before the court, with a new judge.

Judicial mediators must maintain confidentiality as to what took place during the judicial mediation. A judge who has acted as judicial mediator in the case may only participate in the further hearing of the case at the request of the parties, and if the judge does not consider it imprudent to do so.

11.3.4    The City or District Courts, the Courts of Appeal and the Supreme Court (level 1)

The City or District Courts are the ordinary courts of first instance (if the case has not been heard by the conciliation board). Norway is divided into 67 legal districts, each with its own city or district court. If the subject matter of the case has a value less than NOK 125,000 (approx. € 15 000), specific rules for small claims procedure will apply.

The City and District Courts also have some administrative functions, such as registration of deaths and the issue of probate and letters of administration, the functions of notary public and civil marriages.

The Courts of Appeal are courts of second instance in civil cases and hear appeals against the decisions of the city and District Courts. If the value of the subject matter of the case does not exceed NOK 125,000, the Court must approve the appeal to be brought before the Court.

The Constitution states that the Supreme Court of Justice shall pronounce judgment in the final instance, and its decisions cannot be appealed. The Supreme Court is situated in Oslo. When in session, the Supreme Court generally sits with five justices, but occasionally, the Supreme Court sits with 11 justices, or more seldom in plenary session with all 19 justices.

Only a minority of cases (12 % in 2013) are admitted to the Supreme Court. The decision to grant admission lies with the Appeals Selection Committee. Admission is usually only given if the case is of principal significance, and can therefore give guidance in other, future, cases.

Juries are not used in civil cases.

11.3.5    Judges

Judges are appointed by the King in Council (Cabinet). The appointments are non-political. Judges are appointed first and foremost on the basis of academic and personal qualifications. Judgeships are open to qualified jurists.

The president of a City or District Court may also appoint deputy judges

for a term of two years. The deputy judges are usually younger jurists with limited experience since graduating from law school. The deputy judges are, however, normally assigned cases in the same manner as ordinary judges, and have the same powers as an ordinary judge in the cases they are assigned to administer.

11.3.6    Evidence

The presentation of evidence at the trial is based on the principle of immediacy, i.e. the evidence must be presented directly to the court in its most original form. The principle of immediacy means that witnesses, as a general rule, must give their testimony in court. The principle of immediacy does not apply to the Supreme Court where the presentation of all evidence is indirect as documentary evidence.

On certain conditions, evidence may be conducted as hearing evidence.

Documents in a foreign language must, as a general rule, be accompanied by an authorised translation into Norwegian. The court may waive this requirement if all concerned understand the foreign language. In practice, documents in the other Scandinavian languages and in English will normally be accepted, whilst the court will usually require that documents in other foreign languages be translated into Norwegian (or English).

11.3.7    Public access

Pleadings during the preparatory stages of trial (the writ of summons, notice of defence, etc. – see section b) below) are not public. However, the hearing itself is, as general rule, open to the public, and anyone has the right to access the documents presented as evidence in the court, after the evidence has been presented.

11.4    IMPORTANT MILESTONES OF A TRIAL

11.4.1    The initiation of the case and the Conciliation Board

Before the plaintiff can file an originating summons to the Conciliation Board or a writ of summons to the District/City Court, the defendant should be notified about the pending claim. This notification is not a pleading. However, the claim and the legal basis for the claim should be presented in writing, with a request for the adversary to consider the claim.

If the plaintiff fails to notify the defendant of the claim, this will not affect the validity of the claim. It may, though, be taken into consideration when it comes to which party shall bear the legal costs of the case, see section 0.

The parties to a civil action must, with certain expectations as described in section 0 above, meet before the Conciliation Board for mediation proceedings.

The plaintiff must present an application for conciliation to the Conciliation Board, identifying the parties to the case, and containing a short statement as to the substance of the case. It is recommended, but not necessary, that the application contains a plea. A plea enables the Conciliation Board to pass judgment in default if the defendant does not appear.

If the dispute is not settled through conciliation proceedings and the Conciliation Board does not rule on the matter, the case will be stopped. The plaintiff then has one year to file a writ of summons with the City or District Court. Any judgment of the Conciliation Board can be appealed to the City or District Court.

11.4.2    Initiation of the case

The first instance procedure is initiated by the writ of summons to the City or District courts.

The writ of summons must state both the facts and the legal basis for the claim, and should contain a list of the evidence the plaintiff intends to present in support of the claim. It must also contain the plaintiff’s plea.

After a writ of summons has been filed, the summons will be served on the defendant. The defendant must file a defence within a given time limit, usually 3 weeks. The failure to file a defence reply may result in judgment being awarded against the defendant on the basis of the

plaintiff’s version of the dispute.

The preparatory proceedings end with a closing submission from both parties; usually two weeks before oral hearings starts.

11.4.3    Main hearing

The main hearing starts with a short (approx. 15 minutes) summary of the case as the judge has understood it. After the summary, the plaintiff and the defendant are asked to present their opening arguments and written evidence, normally through their lawyers. The plaintiff’s side starts.

After the opening arguments, the party representatives from plaintiff and the defendant testify, followed by any other witnesses, all under oath.

After the examination of parties and witnesses is completed, each side will present their closing arguments.

The parties are not obliged to be represented by lawyers at the trial. However, self-representation is rare in commercial civil cases, for good reasons.

11.4.4    Judgment

Apart from applications to amend clerical errors in the judgment, there are no particular post-trial motions in Norwegian civil procedure. Until a judgment is legally enforceable, it may be appealed. If a judgment is legally enforceable, the only alternative is to apply to have the case re-opened, but the conditions to have a case re-opened are very strict.

According to the Dispute Act, the entire procedures before each instance should be completed within 6 months from writ of summons or the appeal was received by the relevant court until a judgment is passed.

11.4.5    Appeal

The judgments of the District Courts may be appealed to the Court of

Appeal, and from there to the Supreme Court. The time limit for appeal is usually one month from the date upon which the judgment was lawfully served.

11.5    PRELIMINARY INJUNCTION

A preliminary injunction is a temporary judgment, where you can secure or accomplish a claim temporary, until final judgment is available.  Preliminary injunctions apply to all claims except for money claims, and are practical not least for securing IPR.

Examples include injunctions against the sale of copied products and distribution of defamatory articles in the media.

11.6    LAWYERS’ FEES AND PROCEDURAL COSTS

Court filing fee applies when filing an application to the Conciliation Board, a writ of summons to the District Court, or an appeal to the Court of Appeal or the Supreme Court. The court fee varies depending on the case and the court’s legal action.

The party who initiates a court case or appeals a court decision must pay the court fee to the court. One base court fee is 860 NOK (approx. €100). The number of court base fees to be paid depends on the case and how comprehensive the case is. One day in the City or District Courts cost for example five base court fees (4300 NOK) and two days cost eight base court fees (6880 NOK).

In addition to the procedural fees, incidental costs may arise in the form of court costs for lay judges, experts and witnesses.

Lawyers’ fees depend on the complexity of the actual case. As a general rule, a lawyer needs three days of preparation per day in the court. For a partner at 2 600 NOK per hour (approx. € 315) two days court, runs at  case may be NOK 156 000 (60 hours x NOK 2600 = NOK 156 000, or approx. € 18 900).

If a party wins the case in all material respects, the court will, as a general rule, order the losing party to cover the winning party’s necessary legal costs. That means you may not have full coverage even if you win completely, if legal cost is seen as too high by the court.

When a case is partly won, partly lost, the general rule is that each party shall bear its own costs.

With the exception of plaintiffs that do not reside in Norway or an EEA country, there is no general rule that a plaintiff must provide security for costs in a civil case. A non-resident or non-EEA plaintiff, however, is obliged to provide security for procedural costs if the defendant so requests, unless exception has been made by way of treaty with the plaintiff’s country of residence.

11.7    CRIMINAL PROCEEDINGS

The criminal procedure is governed by separate rules. A detailed presentation of Norwegian criminal procedure would exceed the framework of this overview, however, the main characteristics criminal lawsuits can be summed up as follows:

  • Criminal proceedings commence with the investigation. The investigating authorities (Police, National Tax and Customs Office) conduct the investigation independently of the courts or upon the order of the prosecutor. Therefore, in most cases, the complainant has no control over the criminal procedure. The tasks of investigating authorities include the exploration of the crime and the perpetrator, furthermore tracing and securing evidence.
  • The Prosecutor files an indictment if The Prosecutor, based on the investigation, is convinced about the guilt of the defendant and that he is able to prove this before the court.
  • The court may proceed only upon an indictment: the court may only establish the criminal liability of the person against whom the accusatory instrument was filed, and may only consider acts contained in the instrument.
  • The procedure is not inquisitorial.

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