NORWAY Trends and Developments Contributed by: Christian Reusch, Jenny Sandvig, Oda Lauksund Engamo and Therese Sætre Løfsgaard, Advokatfirmaet Simonsen Vogt Wiig
quently changed circumstances. If the revision claim rests on the other party’s failure to disclose information that is material to the agreement, the threshold may be lower. • In debt reduction negotiations, a debtor generally owes creditors a broad duty of disclosure. A close relationship between the parties also implies a heightened duty of loyalty, including an obligation to share relevant information. • The threshold for revising commercial contracts depends on both the parties’ level of professional- ity and their relative bargaining power. The fact that one of the parties, by virtue of its position, resourc- es or expertise, was better placed to shape the terms to its own advantage may indicate that the contract is unreasonable and subject to revision. The Court’s assessment of the case at hand The Supreme Court held that the Buyers owed strict duties of loyalty and disclosure, given that they were (i) debtors negotiating a reduction of their indebted- ness, (ii) former co-founders and business associates of the Sellers, and (iii) had undertaken to advance the interests of all founders. Furthermore, the Supreme Court emphasised that the Sellers were not professional investors, whereas the Buyers were assisted by financial and legal advisers in the negotiations. The Sellers also had limited insight into the Buyers’ negotiations with the third-party investor. This created a striking imbalance between the parties in their ability to influence the terms of the debt reduction agreement. Consequently, the Supreme Court concluded that invoking the debt reduction agreement would be unreasonable, and it set the agreement aside in full. The Sellers were therefore entitled to payment of the full purchase price of NOK41 million under the 2017 share purchase agreement. The Impact of Red Rock The Supreme Court’s judgment in Red Rock has already given rise to multiple claims by commercial parties seeking to set aside allegedly unreasonable obligations. Some have succeeded, particularly where the counterparty failed to disclose material informa- tion or breached duties of loyalty and disclosure.
As a result, Norwegian contract law may be moving towards higher standards of loyalty and disclosure for commercial parties. National limitations on access to evidence containing trade secrets – compatible with EEA law and the fundamental right to a fair trial? Introduction Disclosure is important not only for commercial parties seeking to safeguard their contracts against court- ordered revision; it is also fundamental to the dispute resolution process itself and a prerequisite for a fair and sound adjudication of legal disputes. Accordingly, under Section 21-4 of the Dispute Act, the default rule in Norwegian law is that the parties must give each other access to evidence. Section 22-10 provides an exception – particularly relevant to commercial parties – permitting a party to refuse disclosure if doing so would reveal trade secrets. Nevertheless, the court may order disclosure of the evidence if it considers this necessary. In a decision dated 26 June 2025, published as HR- 2025-1218-A and arising from a dispute between two companies over an alleged non-compete obligation, the Supreme Court was asked to clarify the interplay between Section 22 10 of the Dispute Act, on the one hand, and EEA law and the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR), on the other. The issues More specifically, the Supreme Court had to address two issues: • First, whether EEA law requires national courts to obtain and review evidence that may contain trade secrets, in order to assess whether it should be adduced in the proceedings. • Second, if Norwegian courts, due to EEA law and the right to a fair trial under the ECHR, are required to order the disclosure of evidence containing trade secrets unless confidentiality is strictly nec- essary.
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