NORWAY Trends and Developments Contributed by: Christian Reusch, Jenny Sandvig, Oda Lauksund Engamo and Therese Sætre Løfsgaard, Advokatfirmaet Simonsen Vogt Wiig
Before deciding the case, the Supreme Court asked the EFTA Court for an advisory opinion on the EEA law questions. Does EEA law require national courts to obtain and review contested evidence that may contain trade secrets? As to the first issue, the Supreme Court noted that Section 26 7 of the Dispute Act authorises courts – but does not oblige them – to obtain evidence before ruling on its production. The Court saw no basis in EEA law for a different inter- pretation. It emphasised that the EFTA Court, in its advisory opinion, stated that EEA law merely requires that national courts have discretion to obtain the evi- dence in question where necessary to make a sound assessment of whether to order disclosure. Consequently, the decision reaffirms that courts may refuse a party’s application for disclosure on the ground that the evidence contains trade secrets, without first obtaining and reviewing the material in question. May Norwegian courts only deny access to evidence containing trade secrets when strictly necessary? As to the second question, the Supreme Court point- ed out that, under Section 22 10 of the Dispute Act, the default position is that a party may refuse to dis- close evidence if doing so would reveal trade secrets. It emphasised that any court order granting access to such evidence must be necessary, well justified, and based on a balanced assessment weighing the inter- est in maintaining confidentiality against the need to clarify the case. Next, the Supreme Court considered whether EEA law and Article 6 of the ECHR nonetheless require Norwe- gian courts to order disclosure of evidence containing trade secrets, unless confidentiality is strictly neces- sary. The Supreme Court answered the question in the negative. Having considered the advisory opinion of the EFTA Court and several decisions from the European Court of Human Rights, the Supreme Court concluded that EEA law and the ECHR merely require that national
courts are given the opportunity to strike a balanced weighing of the interest in elucidating the case on the one hand, and the need for confidentiality on the other. However, limitations on the right of access to evidence must not in any case conflict with the very essence of a fair trial, the Court noted. The Supreme Court clarified that, within these general boundaries, states are free to shape their own rules on access to evidence. Section 22-10, the Court held, falls well within those limits. Accordingly, the decision implies that the Norwegian legislature enjoys a wide margin of appreciation in developing such rules. Arbitrator impartiality: lawyers as arbitrators Introduction Arbitration is becoming an increasingly attractive alternative to ordinary court proceedings in Norway. As arbitration is used more widely, there is a corre- sponding need to clarify the rules that govern the arbitral procedure. On 19 May 2025, the Supreme Court handed down decision HR-2025-921-A, providing new guidance on A lawyer had been appointed as an arbitrator in a shareholder dispute. The question before the Supreme Court was whether the lawyer should have been dis - qualified from serving due to a lack of impartiality, as the prevailing party was a client of the law firm of which the lawyer was a partner. Takeaways of general interest from the Court’s decision The Court ultimately answered the question in the negative and made several important remarks on the interpretation of the Norwegian rules on arbitra- tor impartiality set out in Section 14 of the Arbitration Act. Some key takeaways include: • The impartiality requirement for arbitrators is largely aligned with that applicable to judges in the ordinary courts. Still, there may be differences, for example due to the distinctive features of the arbitral process. arbitrator impartiality. Background and issues
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