NORWAY Trends and Developments Contributed by: Kristine Hyldmo Bjørnvik, Andreas Meidell, Henrik Møinichen and Nanette Arvesen, Advokatfirmaet Thommessen AS
A particularly clear manifestation of this development is the increased focus on a detailed Procedural Order No 1, whereby the contentious issues are crystallised and the submission of evidence is regulated in detail. Written witness statements with oral cross-examina - tions are also becoming the norm in larger cases, and the parties are asked more often than before to pro - duce skeleton arguments and, depending on the case, a joint statement of facts. It is expected of the arbitrators that they will read the parties’ submissions, and in general, the key evidence and all the witness statements and expert reports, before the hearing. Compared to ordinary court pro - ceedings in Norway, arbitrations offer a significant advantage if the arbitrators are well prepared and have a fairly good understanding of the case before the hearing. This not only enables the arbitrators to under - stand and question the parties’ arguments presented during the hearing, it also ensures that the hearing can focus mostly on legal presentations, the contentious facts and cross-examinations. This trend towards a higher number of written pro - ceedings, front-loading, and pre-agreed deadlines for submissions brings Norwegian arbitration more in line with what may be called “international practice and standards”. Further to this internationalisation, there is also an increasing trend for arbitrators not to merely rely on the established rules for ordinary Norwegian court litigation when deciding procedural disputes. Instead, they take a more international approach and seek guidance from international rules and best prac - tice guidelines, typically the IBA Rules on the taking of evidence when determining whether requests for evidence are specific enough and meet the require - ment of relevance and materiality. Submission of Evidence The Arbitration Act contains few rules on evidence, allowing parties to agree on more specific rules tai - lored to their needs or to adopt the rules of a chosen institution. Procedural Order No 1 typically requires parties to disclose evidence, including written witness statements and expert reports, within set deadlines, with limited acceptance of delays or late submission of substantial supplemental evidence. Parties are often encouraged to front-load preparations to ensure
clarity and avoid a chaotic end-phase with late sub - missions for tactical or other reasons. For example, encouragement for early agreement on front-loading is included in the newly published revision of NOMA’s CMC Matrix, which is appended to the NOMA best practice guidelines. In the updated version of its best practice guidelines, NOMA has replaced its NOMA Rules on the Taking of Evidence with a reference to the IBA Rules on the Tak - ing of Evidence 2020 (the “IBA Rules”), the most widely used guidance in international commercial arbitration. NOMA’s previous rules were mainly based on the IBA Rules, albeit with some modifications. Notably, the amendment means that the previous rule stating that written witness statements “will not be used unless the parties agree to the contrary” – a rule absent in the IBA Rules – is no longer included. This change may be an example of Norwegian arbitration align - ing more closely with international practice, moving away from the strong principle of oral evidence that characterises Norwegian court litigation. In practice, however, parties in Norway have regularly agreed to submit written witness statements for some time, and arbitrators generally encourage their use. Views on written witness statements vary, but they are often helpful and should be encouraged. They pro - vide a better understanding of the evidence before the hearing, allowing the hearing to focus on contentious matters and enabling more efficient witness examina - tions. Since arbitral awards are final and unappealable, it is beneficial for both parties to better understand the other party’s witness evidence and to reduce the risk of “surprises” during the hearing. This transparency may also result in more amicable settlements being reached before the hearing, as both parties gain better insight into the evidence. Mediation and Settlements in Arbitration Mediation and the role of the tribunal in obtaining set - tlements in arbitration cases is an increasingly dis - cussed topic in the Norwegian arbitration community. By reaching an amicable agreement, parties can avoid the extensive costs associated with prolonged arbitra - tion proceedings, save time, tailor agreements to their specific needs, and preserve business relationships. However, parties may assess the strategic benefits of
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