We summarize the highlights in dispute resolution in the period May to July 2025. Among other topics, you can read about termination of contracts with retroactive effect, conditions for rejecting bids in procurement competitions, access to trade secrets, the scope of the directors' liability, and the latest arbitration news.
Sign up for our newsletter
Thommessen's dispute resolution team sends out a newsletter every quarter with the latest updates in dispute resolution and arbitration, so you can easily stay informed in the field.
- Here you can sign up to receive the next edition directly in your inbox by checking the box for "dispute resolution".
Contract law: Retroactive termination of air freight agreement
On 8 May 2025 the Supreme Court delivered judgment in a case between Grieg Seafood Sales AS and the carrier Schenker AS. The dispute concerned payment for air freight of salmon to China during the COVID-19 pandemic. Grieg was not successful with its claim to terminate the freight contract with retroactive effect after the air transport had been carried out. Consequently, Grieg had to pay for the freight, even though Schenker’s breach of contract was in itself considered to be serious.
Grieg argued that they were entitled to terminate the contract with retroactive effect because the salmon was a total loss on arrival in China, which meant that the purpose of the transport agreement was not fulfilled. Grieg also emphasized that the damage to the salmon was caused by Schenker’s negligence. Schenker rejected the claim, arguing that the transport had been completed, the fish had been delivered, and Grieg’s customers had prepaid for the salmon, including the freight costs. Retroactive termination should therefore not be allowed.
Both the District Court and the Court of Appeal ruled in favor of Grieg. The Supreme Court reached the opposite result, ruling in favor of Schenker. The Supreme Court held that the clear starting point is that a contract cannot be terminated with retroactive effect when one of the parties' performances cannot be returned – in this case, the air transport. More than only a material breach of the contract is required. The contractual breach must be so severe that the freight service has no, or only very limited, value, or that the purpose of the service is substantially frustrated. The Supreme Court found that this threshold was not met. Grieg could possibly have pursued a claim for damages, but the contract could not be terminated as Schenker could not return what they had delivered (the air transport). Grieg therefore had to pay Schenker full freight.
The judgment clarifies the conditions for terminating air freight contracts after the transport has been carried out, and also contributes to a more general clarification of terminations of contracts with retroactive effect.
- The judgment (in Norwegian) can be read here
Tort law: The municipality's liability for accidents in public spaces
On 5 June 5 2025, the Supreme Court delivered judgment in a case against Oslo municipality following a diving accident. The municipality was held not liable for damages after the accident, which occurred on an area developed for public use. The judgment helps clarifying municipalities’ liability for accidents in public spaces.
The case concerned a young man who dived from an area close to the Munch Museum in Oslo. In the dive, he struck his head on a concrete mat that covered a district-heating pipe 1.30 meters below the water surface. The man fractured his spine and was left paralyzed from the chest down. The injuries resulted in 100% loss of working capacity and 85% medical impairment.
The question for the Supreme Court was whether the municipality could be held liable for the injuries. Unlike the District court and the Court of Appeal, the Supreme Court concluded that the municipality was not liable.
The Supreme Court examined liability both under the rules on employer liability and under strict (objective) liability.
In assessing the ordinary employer liability, the Court considered whether the municipality had been negligent in not securing the area better against diving accidents, for example by providing more explicit warnings. Relevant considerations were the probability that someone would dive from the quay, what precautions it was reasonable to expect individuals to take themselves, what measures had been taken on site, and the disadvantages and costs of additional measures. The risk also had to be weighed against the benefit of allowing the public unhindered access to the waterfront.
The Supreme Court held that the municipality could not be blamed for not having provided better protection. The quay did not appear to be arranged for bathing, and it was therefore reasonable to expect people to make certain checks themselves before deciding to dive from the quay. Signs had been posted advising against diving. The Supreme Court found that the municipality could not be required to give an explicit warning about depth and seabed conditions where the concrete mat was located.
In assessing liability on a strict liability basis, the Supreme Court considered whether the area represented such an extraordinary risk of diving injuries that the municipality could be held liable regardless of negligence. The Court concluded that the risk was not substantially greater than the risks people generally encounter in daily life, including in comparable recreational areas. Accordingly, there was no basis for strict liability in this case.
- The judgment (in Norwegian) can be read here
Company law: Scope of D&O liability for transactions prior to bankruptcy
On 20 June 2025, the Supreme Court rendered a judgment in a case concerning directors' liability under section 17-1 of the Norwegian Limited Labilities Companies Act. The main issue was whether a person that was both chairman of the board and the managing director (CEO) of a company was liable for damages to a contracting party for having used funds received by calling on an "on demand guarantee" that had been provided in relation to a construction contract. Both the chairman and the CEO were acquitted by the Supreme Court.
The case stemmed from a contract for the construction of a land-based aquaculture facility between a building owner (employer) and a contractor. The contract was based on the standard form NS 8407, which, among other things, required both parties to provide security for their obligations. The employer provided security by way of an on demand guarantee in the amount of NOK 13,056,488. Disputes arose over the contractor's performance, and the employer sued the contractor. The District Court acquitted the contractor and at the same time ordered the employer to pay the contractor damages amounting to DKK 22.7 million. The contractor then demanded and received payment under the guarantee, even though the building owner appealed the District Court judgment to the Court of Appeal. In the meantime, the contractor spent the received amount of NOK 13,056,488. In the Court of Appeal, however, the contractor was ordered to pay the building owner (employer) damages of approximately NOK 61 million. The contractor filed for bankruptcy without paying the damages. The building owner then brought an action against the chairman and CEO personally.
The Supreme Court considered whether the chairman and CEO had acted negligently in a way that gave rise to liability in damages toward the owner by using the guarantee funds. The Supreme Court denied that claim. D&O liability towards the company's creditors and contracting parties requires a special justification and is normally only relevant in cases when the company's financial position is weak. In such situations, the management – board of directors and CEO – must generally be granted significant leeway in making business judgments.
As to this case, the Supreme Court pointed out that the on demand guarantee gave the contractor an unconditional right to demand payment of the guarantee amount, and therefore the company must also be able to use the amount. Furthermore, the guarantee amount was necessary to finance the appeal case, and it was not negligent to pursue the appeal case even though there was a risk that the district court's judgment would not be upheld. The chairman and CEO had neither violated any obligations under the company legislation and was therefore acquitted of liability for damages and were awarded legal costs for all instances.
- The judgment (in Norwegian) can be read here
Procurement law: Clarification of the duty to reject tenders in a competition
On 13 June 2025, the Supreme Court delivered a judgment that helps clarifying the significance of breaches of technical specifications in tender competitions under Norwegian and EEA law. As to the case at hand, the Supreme Court held that the Norwegian Coastal Administration (Nw. Kystverket) was not obliged to reject a supplier/tenderer in a competition because of breaches of a certain technical specification requirement.
The Supreme Court held that there was no material deviation in the tenderer's bid, and that the bid therefore should not have been rejected. The Supreme Court found that there was no basis for establishing a rule to the effect that all failures of responding to technical specifications shall be deemed as deviations from absolute requirements. Nothing in this case indicated that the technical requirement was an absolute requirement.
- The judgment (in Norwegian) can be read here
Our public procurement team has also discussed the judgment in its newsletter, which can be read here (in Norwegian only)
Construction law: The builder's possibillity to impose changes and calculation of delay interest
On 23 May 2025, the Supreme Court delivered judgment in a settlement dispute between NCC Norge AS and the Oslo Municipality following the construction of the new Jordal Amfi. One central issue – and which the Supreme Court now clarifies – concerns the interpretation of the client's ability to make changes under the rules of the widely used standard contract NS 8407, and in particular the so‑called "15% limit" in article 31.
The Supreme Court's judgment clarifies:
- that the 15% limit for changes only applies to imposed changes by the builder,
- that contract options typically do not "consume" the 15% limit for changes,
- general rules that apply for pricing variation works when exceeding the 15% limit,
- the conditions for a claim to be considered due and payable and for default interest to accrue.
You can read our more detailed Norwegian commentary on the judgment in our newsletter from 27 May 2025.
- You can find the judgment (in Norwegian) here
Tort law: The Supreme Court clarifies the relationship between contractual and non-contractual liability
On 13 June 2025, the Supreme Court overturned the judgment of the Court of Appeal against Rambøll Norge AS, which had been ordered to pay NOK 30 million in damages to a property developer following fire safety deficiencies in a residential building. The case concerned the question whether Rambøll, who had been engaged by two subcontractors, could be held directly liable to the developer for the latter’s loss based on fault-based liability outside the contract.
Following disagreement over the fire safety concept, Rambøll was dismissed as fire safety consultant, and a new consultant was appointed. In 2016, the municipality granted an occupancy permit, but in 2021, the building was closed due to significant fire safety defects. The building had to be demolished and rebuilt.
There was no direct contractual relationship between Rambøll and the developer, and any claim for defects under the Norwegian Housing Construction Act (Nw: bustadoppføringslova) was only relevant within the framework concerning claims against earlier contractual parties. Rambøll had performed its assignments in accordance with its contracts, so there was no contractual liability for defects.
The Court of Appeal held that Rambøll could be held liable based on rules on ordinary fault‑based liability outside contract. Particular weight was placed on the fact that a Rambøll employee knew that the products would not meet the fire‑safety requirements for the developer’s building without supplementary measures.
The Supreme Court agreed with the Court of Appeal that contractual liability may be supplemented by ordinary fault‑based liability and employer (vicarious) liability outside contract, but found it not proved that Rambøll acted negligently. The Supreme Court emphasized that this was compensation for a pure economic loss resulting from an omission by an employee, and that liability would in such case would require a breach of a "general standard of conduct". The reason is that such a "general standard" is not arising out of the contract.
Accordingly, the Supreme Court stressed that the conditions for general fault-based liability are not the same as those for contractual liability. Such liability presupposes a breach of a norm of conduct beyond what arises from the contractual relationship. The Court could not see how, independently of the contractual relationship, there could be said to be a duty on the employee to take the actions identified by the Court of Appeal.
The Supreme Court’s assessment was case-specific, and the disagreement with the Court of Appeal primarily concerned whether the employee’s actions contravened such a general norm of conduct beyond what was required under the contract. The Court considered various possible norms of conduct, including industry standards, and concluded that none had been breached. The case will now be reheard by the Court of Appeal.
Procedural news
Liability for legal costs in small-claim proceedings with multiple parties
On 18 June 2025 the Supreme Court issued a ruling clarifying how to calculate legal costs in small-claims proceedings with multiple parties on the same side.
The case concerned claims by 17 plaintiffs to ownership of a stretch of road valued at about NOK 90,000. It was handled under the small‑claims rules in Chapter 10 of the Dispute Act (Nw. tvisteloven). The plaintiffs succeeded in the District Court, awarding them legal costs in the amount of NOK 110,000. The District Court reasoned that the limitation in Section 10-5 of the Dispute Act – which limits liability for legal costs in small-claims cases to 20% of the amount in dispute, and maximum NOK 50,000 – applies to each of the plaintiffs. Therefore, each plaintiff could claim up to NOK 18,000 in legal costs plus value added tax (VAT). The defendant argued that the award should be limited to NOK 18,000 in total for the plaintiffs.
The Court of Appeal came to the same result as the District Court. The Supreme Court agreed with the District Court and the Court of the Appeal that the limitations in Section 10-5 of the Disputes Act applies to each individual plaintiff and not to all plaintiffs as a group. The consequence is that the unsuccessful party’s liability for legal costs can potentially become significant in small-claims cases that involve many parties.
- The ruling (in Norwegian) can be read here
Access to evidence containing internal legal assessments
On 14 May 2025, the Supreme Court issued a ruling regarding requests for access to documents containing internal legal assessments. The case concerned a financial settlement following the Norwegian state's purchase of 14 military helicopters and the subsequent cancellation of the contract. The requests for access to evidence pertained to the helicopter company's internal assessments of its contractual position.
The Court of Appeal had based its decision on a general rule that internal legal assessments could not be required to be disclosed on the grounds that they contained information about the company's position, and consequently denied the request for access to evidence.
The Supreme Court expressed that the Court of Appeal's rather categorical approach was overly simplistic. The assessment of whether the requested documents are relevant must be more specific. If the internal legal assessments may in fact be deemed relevant to the disputed matters, they may also serve as evidence.
The Supreme Court therefore overturned the Court of Appeal's ruling.
- The ruling (in Norwegian) can be read here
Access to evidence containing trade secrets
On 26 June 2025, the Supreme Court issued another ruling regarding requests for access to documents, this time a document containing trade secrets.
One of the companies had submitted a redacted version of an application for a tax deduction as evidence. The other party demanded full access to the application, referencing among others EEA law and the European Convention on Human Rights (ECHR).
Similar to the District Court and the Court of Appeal, the Supreme Court concluded that the document could not be required to be disclosed. According to national rules, the court has discretion in assessing whether a document should be disclosed. In this assessment, the need for disclosure of the case must be weighed against the need for confidentiality.
The Supreme Court considered both EEA legal sources and the case law of the European Court of Human Rights (ECHR) and concluded that these sources did not provide basis for a stricter rule than the national law. As long as access to evidence is not restricted in a manner that infringes on the very essence of the right to a fair trial, it is up to the national legal systems to establish the specific rules for access to evidence.
Arbitration news
Challenge of arbitral award - lawyer was not imartial to be appointed and act as arbitrator
The Supreme Court recently upheld the Appeal Court's judgment regarding the validity of an arbitral award. The Supreme Court held that a lawyer who was appointed as arbitrator was not impartial due to a connection between the firm in which he is partner and one of the parties in the arbitration case.
The party challenging the award argued that one of the arbitrators, who is partner at the Norwegian law firm Wiersholm, was not sufficiently independent and impartial. The alleged disqualifying event was Wiersholm's ongoing relationship with one of the parties. Other lawyers in Wiersholm were assisting that party in an environmental law matter. Wiersholm had invoiced approx. NOK 1.9 million.
The Supreme Court found that the arbitrator was not impartial and held that the award was valid. The Supreme Court agreed with the Appeal Court that the relationship between Wiersholm and the party was of limited significance and did not create justifiable doubts about the arbitrator's impartiality.
However, the Supreme Court emphasized that the arbitrator was required to disclose information about this connection to one of the parties when being appointed. That said, a breach of this duty of disclosure is not in itself sufficient to conclude that the arbitrator was in fact impartial and could not have been appointed. The duty of disclosure encompasses more than strictly disqualifying events.
By this judgment, the Supreme Court clarifies that a lawyer may indeed be appointed and act as arbitrator in some cases even if his or her law firm has an ongoing relationship with one of the parties. This depends on an overall assessment. 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.
Accordingly, such a connection may be acceptable if the law firm's assistance is (very) limited in view of the firm's total turnover and concerns matters that are unrelated to the specific arbitration case.
- The Supreme Court's judgment (in English translation) can be read here
Nordic offshore & maritime arbitration (NOMA) - updated guidelines from june 2025
The Nordic countries are competitive jurisdictions for conducting international commercial arbitrations and are regularly adapting arbitration rules and guidelines to meet expected standards on the market.
The NOMA rules and guidelines are widely used in both national and international arbitrations that are conducted in Norway, to ensure a predictable and efficient process. Despite NOMA's maritime background, the rules and guidelines are generic and can just as well be used in non-maritime cases.
The best practice guidelines were most recently updated in June 2025. In the updated guidelines, NOMA has replaced its NOMA Rules on the Taking of Evidence with a reference to the IBA Rules on the Taking of Evidence 2020, the most widely used guidance in international commercial arbitrations.
One important amendment is that the previous rule stating that written witness statements "will not be used unless the parties agree to the contrary", which is not found in the IBA Rules, is no longer included. This change is one example of Norwegian arbitration aligning more closely with international practice. Written witness statements is clearly advantageous, at least in complex commercial arbitrations.
From Thommessen's perspective, NOMA's updates are favourable and may assist in ensuring both due process and efficiency, including by encouraging the parties to "front load" the case preparations.
