Q1 2026 is behind us, and several interesting cases have been decided by the Supreme Court. Thommessen has had the privilege of presenting two cases before the Supreme Court during this period. Thommessen's dispute resolution team summarises the most important decisions and news within litigation and arbitration from Q1 2026.
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The relevance of general principles of loyalty in the interpretation of commercial contracts
On 5 February 2026, the Supreme Court delivered a judgment clarifying the scope of the contractual duty of loyalty in commercial agreements. The Supreme Court held that the duty of loyalty cannot be used to alter the commercial allocation of risks agreed upon by the parties.
The Norwegian company Isola had for a number of years sold decoupling mats to the German company Dural. Dural resold the mats under its own trademark. Isola was obligated to sell exclusively to Dural (with certain exceptions), while Dural had assumed a volume commitment. However, the agreement did not impose any exclusivity obligation on Dural. In 2019, Dural entered into a collaboration with an Italian company that produced a comparable mat. This prompted Isola to terminate the agreement and claim damages.
The Supreme Court concluded that the termination was wrongful. The agreement contained no exclusivity obligation for Dural, and such an obligation could neither be implied nor based on the uncodified and general duty of loyalty in contractual relationships.
The Supreme Court noted that generally, the legal significance of the general duty of loyalty will vary from agreement to agreement and must be assessed in light of the parties, the degree of collaboration, and the purpose of entering into the agreement. As part of this consideration, a key consideration is the reasonable expectations of loyal conduct established by the contractual relationship in question.
The Supreme Court found that the longstanding collaboration between Isola and Dural warranted a somewhat more stringent duty of loyalty. However, this could not extend as far as to effectively impose exclusivity on Dural. Doing so would have altered the allocation of risks that the parties had deliberately agreed upon and set out in writing. Nor was Dural's act of sending Isola's decoupling mat to its new Italian partner considered disloyal. The mat was available in the market and was not protected by intellectual property rights.
The judgment is important for commercial contracts. Exclusivity must be agreed and can hardly be implied. The duty of loyalty is not a tool for repairing lack of contractual protection after the fact. Even in longstanding collaborative relationships, a more stringent duty of loyalty cannot alter a specifically agreed allocation of risks.
Thommessen, represented by attorneys Henning Harborg and Julie Rasmussen Solli, assisted Dural before the Court of Appeal and the Supreme Court.
Finance regulation and company law: The legality of organising with internal partnerships
In 2020, the Financial Supervisory Authority of Norway (NFSA) issued decisions against three investment firms and one alternative investment fund manager, in practice requiring the firms to wind up internal partnerships (Nw. indre selskap) in which the firms participate as general partners (Nw. hovedmenn) and certain key persons participate as silent partners (Nw. stille deltakere). On 6 March 2026, the Supreme Court handed down a judgment declaring the NFSA's decisions invalid and the firms' participation in the internal partnerships lawful.
The background to the case was that three investment firms – Pareto Securities AS, Clarksons Securities AS and Carnegie AS – and the alternative investment fund manager Pareto Alternative Investments AS – had entered into profit and loss sharing agreements with some of their key persons. Under the agreements, internal partnerships were established, with the firms as general partners and the key persons as silent partners. An internal partnership is a defined form of partnership under the Norwegian Partnerships Act, but is distinctive in that it does not constitute a separate legal entity.
The firms' activities as investment firms and alternative investment fund manager, respectively, are subject to authorisation requirements. The NFSA took the view that the partnership agreements entailed that the internal partnerships were carrying on activities subject to authorisation. The internal partnerships did not hold – and could not obtain – authorisation under the Securities Trading Act or the Alternative Investment Fund Managers Act (AIFM Act) to conduct such activities. The NFSA therefore ordered the firms to change their organisational structure so that no part of the activities subject to authorisation would be "made available to, provided by, or transferred to an internal partnership". The Ministry of Finance upheld the decisions on appeal, and the firms brought proceedings.
The District Court ruled in favour of the State, but the Court of Appeal declared the decisions invalid. The Supreme Court dismissed the State's appeal and unanimously held that the organisational structure involving internal partnerships is lawful.
There were two central issues before the Supreme Court: first, whether the establishment of internal partnerships meant that the firms were organised in breach of the requirement that authorisations may only be granted to limited liability companies under Section 9-9 of the Securities Trading Act and Section 2-4 of AIFM Act; and second, whether the internal partnerships were conducting activities without authorisation in breach of Section 9-1 of the Securities Trading Act and Section 2-2 of the AIFM Act.
On the first issue, the Supreme Court found that the brokerage firms had not changed their corporate form by the establishment of internal partnerships, that there was little to suggest that organising through internal partnerships makes supervision of the firms particularly challenging, and that there were no grounds for concluding that the organisational structure conflicts with the objective of investor protection. Nor could any other legal sources justify prohibiting such organisation, and accordingly it was not in itself contrary to Section 9-9 of the Securities Trading Act or Section 2-4 of the AIFM Act for the firms to participate as general partners in internal partnerships.
On the second issue, the Supreme Court placed decisive weight on the fact that it is the general partners – i.e. the firms – that provide investment services, conduct investment activities and manage investment funds, and that the wording of the partnership agreements did not indicate otherwise. When the silent partners in the internal partnership made decisions, they did so on the general partners' behalf.
The judgment is of significant practical importance for the financial industry and confirms that organising through internal partnerships is lawful, provided that the partnership agreement is drafted and the operations are structured so that the firm can continue to fulfil its obligations towards clients and regulatory authorities. The decision also provides guidance on the legal effects of internal partnerships more generally.
Thommessen, represented by attorney Henning Harborg, acted for the firms before all instances.* Thommessen has commented on the judgment on LinkedIn here (in Norwegian).
* Carnegie AS was not a party before the Supreme Court after DNB's acquisition was completed in 2025.
Employment law: Severance packages for top executives
On 30 January 2026, the Supreme Court delivered a judgment clarifying an employer's authority to decide that a top executive, who has waived employment protection in exchange for severance pay, must step down. The Supreme Court concluded that the employer had not abused its managerial prerogative and ruled in favour of the employer.
The case concerned a municipal director who was required to step down in accordance with a severance agreement. For an organisation's top executive, the Working Environment Act permits employment protection to be waived in exchange for severance pay upon departure. This reflects the fact that top-level executives often hold a strong negotiating position, while the organisation may have legitimate reasons for changing leadership. The municipal director argued that the municipality had not handled the matter correctly, and that the decision was based on erroneous factual assumptions. The municipal director did not succeed with these arguments.
Key take-aways from the judgment:
- The employer is not required to provide reasons when deciding that a top executive with a severance agreement must step down: The employer may decide that the top executive must step down without the executive being at fault, and without specifying the basis for the decision. There are no substantive limitations on the employer's discretionary authority.
- Certain minimum procedural requirements apply: The courts may review whether the decision constitutes an abuse of the employer's managerial prerogative, including whether the decision appears arbitrary or based on irrelevant considerations. If reasons have been provided, the courts may also review whether the decision is based on a materially incorrect factual basis. The executive should also be notified that invoking the severance agreement is being considered, but this is a procedural rule without legal consequences for the authority to implement the agreement.
- High threshold for overturning the employer's decision: The Supreme Court explicitly states that the threshold for overturning a decision requiring departure is high. The procedural requirements must be adapted to the employer's discretionary authority and the particular considerations that apply when the company's top executive has waived employment protection.
Internet consumer purchases - where can consumers sue professional sellers?
On 25 February 2026, the Supreme Court issued a ruling confirming that a consumer may bring legal proceedings at their own local court for purchase agreements concluded online, even if the purchase agreement was signed at the seller's place of business. The decisive factor was that the purchase agreement had in reality been concluded through remote communication before the buyer visited in person.
The background was a consumer's purchase of a motorhome from a professional seller. The motorhome was marketed online, and the parties agreed on the essential terms via e-mail. The buyer then visited the seller's premises to sign the purchase agreement and collect the motorhome. When the consumer later wanted to bring legal proceedings against the seller, the question arose as to which venue could be used.
Under the Norwegian Disputes Act, consumers may as a general rule bring legal proceedings at their own court of venue, i.e., at the district court for the area in which they reside. An exception applies where the consumer has personally attended and entered into the agreement at the seller's fixed place of business. In that case, the consumer must bring proceedings at the seller's court of venue. The question was whether this exception applied when the buyer had signed the purchase agreement at the seller's premises.
The Court of Appeal concluded that the parties had in reality entered into a binding purchase agreement by e-mail, as they had agreed on the essential terms. The subsequent formal signing at the seller's premises was therefore not decisive. The Supreme Court found no error in the Court of Appeal's interpretation of the law, and the appeal was dismissed.
The ruling addresses a practical situation in consumer purchases made online, and clearly establishes that the decisive factor for the venue rules is when the parties entered into a binding purchase agreement. Once such an agreement has been concluded, the buyer may visit the seller's premises to sign the purchase agreement and collect the goods without this affecting the question of venue.
Access to evidence in Norwegian court cases: Who decides what evidence is relevant?
On 27 February 2026, the Supreme Court issued a ruling on access to evidence in a valuation case between a wind power company and a reindeer herder. The ruling confirms that the court must accept the claimant's legal arguments at face value when assessing whether evidence is relevant to the case.
The background was a claim for compensation for interference with reindeer herding rights caused by wind power development. The reindeer herder had argued that it would constitute discrimination in breach of Article 98 of the Norwegian Constitution the ILO Convention no. 169 on the Rights of Indigenous Peoples (which is ratified by Norway) to award the reindeer herders lower compensation than what the landowners had received through agreements with the wind power company. The reindeer herder therefore sought access to these agreements as evidence in the case.
The Court of Appeal denied the request for access to evidence, arguing that the procedural rules under the Norwegian Disputes Act require that evidence must be relevant to the case in order to be admitted. The Court of Appeal reasoned that the Constitution and the ILO Convention did not support the view that such landowner agreements were relevant to the reindeer herders' compensation, and that the assessment of compensation must be linked to the use of the property. Compensation to landowners who do not engage in reindeer herding would therefore not be relevant to the reindeer herders' compensation.
The Supreme Court disagreed. The Supreme Court pointed out that the Court of Appeal had in reality reviewed the reindeer herder's legal arguments on the content of the Constitution and the ILO Convention. This was contrary to a fundamental principle: When assessing the relevance of evidence, the court must take the party's interpretation of the legal rule at face value. The court's own assessment of the actual content of the legal rule must await the final determination of the case. The Court of Appeal's ruling was therefore set aside.
The ruling confirms a well-known principle in civil procedure and is not surprising. The Supreme Court nonetheless provides a thorough and clear description of the rule.
What does it take to stop a bankruptcy? The debtor's counterclaim can prevent the opening of bankruptcy proceedings
On 22 February 2026, the Supreme Court rendered a ruling clarifying the evidentiary requirements for the opening of bankruptcy proceedings where the debtor alleges to have counterclaims. In this case, the debtor's asserting of having counterclaims against the creditors requesting bankruptcy resulted in the petition for the opening of bankruptcy proceedings not being granted.
The case concerned two bankruptcy petitions filed against (among others) the company Aeonic AS and B. The claims were based on unpaid legal costs and damages arising from previous legal proceedings between the parties. The debtor argued that it had counterclaims, and disputes regarding some of these were still pending in the court system. Both the District Court and the Court of Appeal refused to grant the bankruptcy petitions.
The Supreme Court confirmed that a clear preponderance of probability is required that the petitioning creditor has a claim capable of justifying the opening of bankruptcy proceedings. The rationale is that the consequences of an incorrect opening of bankruptcy proceedings are normally far more severe than the consequences of refusing to open such proceedings.
For counterclaims, the rule is that the debtor's alleged counterclaims shall in principle be accepted, unless there is a clear preponderance of probability that they cannot succeed to such an extent that they exceed the petitioning creditor's claim. The debtor, for its part, bears the burden of producing evidence that such a counterclaim exists – an undocumented assertion is not sufficient.
In practice, this means that if, following the presentation of evidence, there is a reasonable possibility that the debtor has a counterclaim that is at least equal to the petitioning creditor's claim, the requirement of a clear preponderance of probability for the opening of bankruptcy proceedings will not be met.
The ruling serves as a useful reminder for businesses considering bankruptcy petitions as a debt recovery tool: If the debtor is able to document, to some degree, genuine counterclaims of sufficient magnitude, this may in practice block the opening of bankruptcy proceedings. Correspondingly, debtors who receive bankruptcy petitions should be aware of the possibility of averting bankruptcy by documenting counterclaims.
International arbitration - publication of the Heroic Idun award
Thommessen has previously reported on the Heroic Idun award that a Scandinavian tribunal rendered on 5 August 2025. The tribunal found that no war peril had been established and dismissed the shipowner's claim for total loss and mitigation costs under the vessel's war risks insurance.
- Thommessen's analysis of the award can be read here.
The Nordic Offshore & Maritime Arbitration Association – NOMA – has recently published the award on LinkedIn, which can be read here. NOMA reports that Procedural Orders will also be published soon.
