NORWAY Law and Practice Contributed by: Trond Hatland, Per Ole Svor, Henrik Fabian Torgrimsby and Anders Eide Røyneberg, Advokatfirmaet Thommessen AS
The question of whether the parties have an unre - stricted right of disposition can sometimes be subject to doubt, and as such the arbitrability of a legal mat - ter must be decided on a case-by-case basis. For instance, there is an argument in legal theory that a dispute between a limited liability company and one of its shareholders regarding the validity of a General Assembly decision is not arbitrable. Another example of a matter not subject to the parties’ right of disposition is the validity of private rights that have been achieved by public decision, such as pat - ents or trade marks. Furthermore, Chapter 17 of the Working Environment Act contains provisions for civil procedure that preclude labour matters from arbitra - tion. The only exception made is for cases brought by or against the highest ranking officer of a company. Matters of competition law are not necessarily sub - ject to the parties’ unrestricted right of disposition. However, it follows from Section 10 of the Arbitration Act that matters concerning the private law effects of competition law are arbitrable. Pursuant to Section 18 of the Arbitration Act, it is the arbitral tribunal that decides whether a case is arbitra - ble. Nonetheless, a decision as to whether the tribunal is competent to hear the case may be brought before the national courts within a month. Furthermore, pur - suant to Sections 43 and 44 of the Arbitration Act, a ruling by the tribunal may be held invalid by the national courts on the grounds that the case was not arbitrable. 3.3 National Courts’ Approach In terms of determining which country’s law governs the arbitration agreement, the courts are bound by the parties’ choice of law. The Arbitration Act is based on the principle of separability and therefore the arbitra - tion agreement may be governed by a choice of law other than the law governing the substantive contract. Under Section 31 of the Arbitration Act, a reference to the laws of a state is presumed to be a reference to the substantive laws of that state and not the state’s conflict of law rules. In determining whether the national courts are pre - cluded from hearing a case because of an arbitration
clause, the courts apply Norwegian procedural law as a main rule. However, the courts have taken into consideration whether the solution that follows from Norwegian law harmonises with the laws of the state governing the arbitration agreement. In particular, consideration is made to the law governing the arbi - tration agreement when determining the arbitrability of a matter and the validity of arbitration clauses. Case law dictates that the evaluation of whether the parties have entered into an arbitration agreement must be restrictive. The Norwegian Supreme Court bases its reasoning on Article 6 No 1 of the European Convention on Human Rights, which requires that a waiver of the right to access a court must be volun - tary and informed. However, if it can be established that the parties have agreed to arbitrate a matter and arbitration proceedings are initiated, the courts are required to dismiss a case brought before them unless they find it clear that the arbitration agreement is inva - lid or, owing to other reasons, cannot be carried out. According to Section 7 of the Arbitration Act, the defendant must request dismissal no later than when they address the merits of the case if the plaintiff has initiated a lawsuit in the regular courts for matters cov - ered by an arbitration agreement. Failure to request dismissal in a timely manner will result in the regu - lar court proceeding with the case. The Norwegian Supreme Court has applied a strict interpretation of Section 7 of the Arbitration Act, highlighting the impor - tance of the defendant promptly seeking dismissal in the defence reply. Notwithstanding the strict evaluation of whether an arbitration agreement has been entered into, arbitra - tion agreements are only exceptionally held invalid. This is due to the strict criteria for voiding agreements in Norwegian contract law. 3.4 Validity It follows from Section 18 of the Arbitration Act, in which the rule of separability is enshrined, that the validity of an arbitral clause is not dependent on the validity of the contract as such. Therefore, the arbitral tribunal maintains its competence even if it holds the contract invalid.
578 CHAMBERS.COM
Powered by FlippingBook