NORWAY Law and Practice Contributed by: Hedvig Moe, Pål Lieungh, Espen Randen and Elin Ibsen Gustavsen, Advokatfirmaet Thommessen AS
convenience is not a statutory right, but is commonly provided for contractually. Defence contracts typically define specific breaches as material and entitle the government to terminate for convenience, subject to compensation for work performed and costs incurred. 2.13 Challenging Defence Procurement Decisions Any supplier that has participated in or has been affect - ed by a defence procurement process has standing to challenge a procurement decision. The available rem - edies and the forum for challenge depend on whether the procurement is subject to the statutory procure - ment rules or is exempted under Article 123. For procurements conducted under FOSA, the enforcement regime is governed by LOA and its imple - menting provisions. The primary remedy mechanisms are as follows. • First, the contracting authority may set aside its own award decision before contract signature (FOSA, Section 13-3). • Second, before contract signing, a supplier may apply to the ordinary courts for an interim injunc - tion. During the mandatory standstill period, such an application triggers automatic suspension of the contracting authority’s right to sign. The court may set aside the award decision, prohibit the con - tracting authority from proceeding, or order other appropriate measures. • Third, after signing, remedies are primarily mon - etary: damages for lost profit or tender costs, and courts may declare a contract without effect or shorten its duration. There is no specialised procurement court in Norway; all disputes are heard by ordinary courts, with Oslo District Court ( Oslo tingrett ) as the default venue. KOFA may also issue advisory opinions under FOSA in faster, less costly proceedings, and may impose administrative fines for particularly serious violations such as unlawful direct awards. There are no specific statutory limitations on challeng - ing decisions on national security grounds. However, the contracting authority’s discretion is broad and subject to limited judicial review: courts will gener -
ally exercise restraint on the substance of security assessments, while examining whether the decision was procedurally correct, properly reasoned and not manifestly disproportionate. 3. Export Controls and Dual-Use Items 3.1 Export Control Legislation and Regulatory Framework Export control rests primarily on the Export Control Act and Export Control Regulation, covering the export of defence goods, military equipment and dual-use items, as well as brokering and certain transit situa - tions. DEKSA is the national licensing authority, subordinate to the Ministry of Foreign Affairs. The Ministry retains responsibility for policy and regulatory development and acts as the appeal body. For enforcement authori - ties, see 3.9 Enforcement, Penalties and Voluntary Disclosure . 3.2 Scope of Controls: Military and Dual-Use Lists The control lists are annexed to the Export Control Regulation. List I covers defence-related products, reflecting the Wassenaar Arrangement Munitions List as consolidated in the EU Common Military List. List II covers dual-use items, consolidating entries from the Wassenaar Arrangement, MTCR, Nuclear Suppli - ers Group, Australia Group and Chemical Weapons Convention. Norway applies the EU compilations and normally updates the annexes annually. List I comprises 22 categories of military goods using the ML coding format. List II is organised into ten categories, from nuclear materials (Category 0) to aerospace and propulsion (Category 9). Both lists are highly technical, relying on detailed descriptions and control parameters. The lists are not exhaustive. The Regulation con - tains “catch-all” clauses that may trigger a licensing requirement for unlisted goods, technology, and ser - vices, although the threshold for invoking these provi - sions is generally high.
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