NORWAY Trends and Developments Contributed by: Kristine Hyldmo Bjørnvik, Andreas Meidell, Henrik Møinichen and Nanette Arvesen, Advokatfirmaet Thommessen AS
Interest in International Arbitration (2024) (the “IBA Guidelines”). The Supreme Court’s openness to inter - national sources and harmonisation promotes trans - parency and predictability, benefiting parties engaged in international commercial arbitration proceedings in Norway. The Supreme Court emphasised that the standards of independence and impartiality for arbitrators are generally the same as for judges, given that both arbi - tration and court proceedings serve the public interest and rely on public trust. However, differences in the context and nature of these proceedings, including the aim of international harmonisation in arbitration, may affect the application of these standards. Referring to the IBA Guidelines (2024) and general practice under the Norwegian Dispute Act, the court noted that whether a client relationship between the arbitrator’s law firm and one of the parties raises justi - fiable doubts about the arbitrator’s independence and impartiality depends on a comprehensive assessment of the circumstances. Key factors include the nature, scope, commercial importance, and duration of the client relationship, as well as the arbitrator’s role in the handling of the assignment, the arbitrator’s role within the law firm, and the firm’s size and structure. Generally, if the arbitrator’s law firm has a substan - tial assignment for a party during the arbitration, the arbitrator should be disqualified, even if other attor - neys in the firm manage the client relationship. Smaller assignments must be evaluated case by case, con - sidering the assignment’s scope and business signifi - cance relative to the firm’s overall activities. If there are points of contact between the arbitrator and the client relationship, this must be taken into account. This can easily lead to disqualification, even for more modest assignments. Regarding the obligation to disclose, the court empha - sised that arbitrators must proactively disclose any circumstances likely to give rise to doubts about their independence or impartiality, ensuring a clear record of such disclosures. While a breach of this duty is rel - evant, it is typically decisive only in borderline cases. If the arbitrator is appointed by a court, it is sufficient to provide the disclosure to the court.
In this instance, the Supreme Court concluded that the client relationship between the arbitrator’s law firm and the party did not give rise to justifiable doubts about the arbitrator’s independence and impartiality. Although the law firm had assisted the party over sev - eral years, the work was sporadic and commercially negligible, confined to an unrelated matter in a specif - ic legal field. There were no points of contact between the arbitrator and the client, who was assisted by a partner in a different department. The non-disclosure of this relationship did not alter the court’s conclusion. AI Technology, Digitalisation and Videoconferences The integration of digital technology in Norwegian litigation and arbitration is becoming increasingly prevalent, both during hearings and in the preparatory phase. This trend is further amplified by the ongoing debate on the impact of AI technology and generative language models, which offer significant advantages but also present certain risks. In Norway, the general perspective is that AI should not be used to assess applicable law due to the risk of hallucinations. AI tools are, however, often used by parties to support effective searching, organising and analysing of facts and documents during the prepara - tory stage and hearings. AI is also increasingly used to transcribe recordings from hearings effectively. However, while awaiting further developments in the field, AI tools cannot and should not replace human assessments and decisions. Witness testimonies and increasingly, entire hearings, are now often recorded and transcribed. This practice is recommended in NOMA’s CMC Matrix, where par - ties are encouraged to agree on practical guidelines. Recordings can be useful for subsequent disputes regarding the validity of the final award, and helpful for preparations for closing statements. Virtual data rooms for exchanging case-related infor - mation and documents electronically, both between lawyers and clients, and between the parties in arbi - tration, are now common in Norwegian commercial arbitrations. The norm is that all documentary evi - dence is collected in electronic files, allowing lawyers to create links for the arbitral tribunal, thereby easing access to relevant documents.
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