NORWAY Law and Practice Contributed by: Harald Sætermo, LexOslo
The authorities may approve the transaction, impose conditions or prohibit it. Investors should confirm the rules in force at signing and closing and, where appli - cable, make approval a closing condition. If a transaction is completed without required approv - al, or if it gives rise to national security concerns, the authorities may order remedial measures and, in seri- ous cases, require the transaction not to be imple - mented or impose conditions. Criminal liability may apply for breach of orders or prohibitions issued under the Security Act, including under Sections 2-5 or 10-3. Adopted amendments, not yet fully in force, will introduce administrative fines for intentional or negli - gent breaches of the notification obligation once the relevant provisions enter into force. Sector-specific regimes, for example in financial services, petroleum, hydropower, fisheries and aquaculture, have their own procedures and sanctions. 2.3 Commitments Required From Foreign Investors The Norwegian authorities may approve a transac - tion subject to commitments where identified risks can be mitigated. In the foreign investment context, such commitments are most relevant under the Nor - wegian Security Act and in regulated sectors requiring licences or ownership approvals. Under the Security Act, commitments are directed at national security concerns. They are not normally used to require foreign investors to give broad eco - nomic undertakings, such as maintaining a particular level of employment or investment in Norway merely because the acquirer is foreign. Possible commitments may include restrictions on access to classified or sensitive information, require - ments for Norwegian or security-cleared personnel in certain functions, ring-fencing of sensitive business areas, restrictions on information flows to the acquirer or its affiliates, enhanced cybersecurity and physical security measures, governance arrangements limit - ing influence over sensitive operations, and reporting obligations to the authorities. Where the target operates critical infrastructure or provides services important to fundamental national
functions, the authorities may also focus on continu - ity of supply, localisation of key systems or functions, resilience arrangements, emergency preparedness and the ability of Norwegian authorities to exercise supervision. In sector-specific regimes, commitments depend on the relevant legislation. Financial-sector approvals may include requirements relating to the suitability and financial strength of the owner, governance and group structure. Energy, petroleum, hydropower, fish - eries and aquaculture approvals may include licence- specific obligations, ownership limitations or condi - tions designed to safeguard resource management, security of supply or regulatory oversight. If the authority considers that the risk cannot be ade - quately mitigated through commitments, the transac - The available remedies depend on the legal basis for the decision and the authority making it. Where an administrative appeal is available under general Norwegian administrative law, the ordinary appeal deadline is three weeks from receipt of the decision. The appeal is normally submitted to the authority that made the decision, and the written decision should state the applicable appeal route and deadline. Under the current ownership control regime in the Norwegian Security Act, decisions are made within the sector-based administrative structure. Decisions may be made by the relevant sector ministry, with any administrative appeal generally handled by the government. Where the final decision is made by the government, administrative appeal will be limited in practical terms. The validity of administrative decisions may gener - ally be challenged before the ordinary courts. Norway does not have separate administrative courts for this type of case. Judicial review generally concerns the legal and factual basis for the decision, rather than the administration’s discretionary assessment. The courts decide whether the decision is valid or invalid, but do not make a new decision on the merits. In cases involving national security, classified information or tion may be prohibited. 2.4 Right to Appeal
786 CHAMBERS.COM
Powered by FlippingBook