Thommessen's dispute resolution team summarises the most important decisions and news within litigation and arbitration from Q1 2026.
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Contract law: When do standard terms form part of the contract?
On 8 April 2026, the Supreme Court issued a judgment clarifying the scope of a reference to standard terms in a tender. A general reference in a tender to "general terms and conditions" was interpreted as covering only practical provisions relating to the subject matter of the contract, and not far-reaching limitations of liability. The judgment sets out important principles for the interpretation and incorporation of standard terms in contracts between professional parties.
The case concerned a recourse claim in a construction relationship between two large professional players in the energy well drilling industry. Boligenergi as main contractor had engaged Rototec as subcontractor to drill 34 energy wells for a housing cooperative in Oslo. The contract was based on NS 8417 (General conditions of contract for design and build sub-contract). As a result of the drilling, extensive subsidence damage occurred to three properties, with repair costs estimated at NOK 100–200 million.
The central question was whether limitation of liability clauses in Rototec's general terms for energy drilling formed part of the contract. In its tender, Rototec had written that the company's "General Terms for energy drilling (customer agreement energy drilling 2017) apply to this project". This sentence was placed under the heading "The Client's obligations" in the tender. The terms contained, among other things, a clause disclaiming Rototec's liability for consequential damages – including subsidence damage – inflicted on third parties, and a general limitation of liability capping liability at the agreed price.
The Supreme Court held that for both interpretation and incorporation, it may be relevant whether the content of the terms is surprising, unusual or unreasonable, or whether they deviate from similar provisions in the other contract documents. The parties' duty of loyalty is a fundamental principle, and attempts to "wrap up" or "hide away" a burdensome term will weigh against the term being considered incorporated.
The Supreme Court found that the reference in the tender only applied to provisions on practical delivery conditions, and not the liability limitations. Several factors were decisive: First, the reference was placed under the heading "The Client's obligations", which concerned practical facilitation at the drilling site, and not legal liability matters. Second, the liability limitations would entail a far-reaching reallocation of the subcontractor's negligence liability under NS 8417 – something that should have been made visible in the tender if that had been the intention. Third, the overarching contract document gave NS 8417 priority as the contractual basis, without any amendments to the standard's liability provisions. Fourth, it was Rototec that had created the ambiguity, and the risk of this ambiguity had to be borne by Rototec.
The Supreme Court also emphasised that no evidence had been produced showing that the parties had a common understanding that the terms applied in their entirety, and that Rototec had not invoked the liability limitations until the preparation stage before the district court – more than three years after the subsidence damage occurred.
The judgment is of practical importance for contracting parties using standard terms. It demonstrates that a general reference to standard terms in a contract document does not automatically make all the terms part of the agreement. Particularly where the terms contain far-reaching provisions on allocation of liability, this should be clearly highlighted – for example under a separate heading in the tender.
Contract law: What are the buyer's obligations under earn-out provisions?
On 3 June 2026, the Supreme Court issued a judgment addressing the buyer’s duty of loyalty in earn-out agreements. Following a transaction for the acquisition of a company, the buyer had sold shareholdings to its own shareholders at a price the seller argued was clearly below costs, negatively impacting the earn-out. The Supreme Court found that the sale was an extraordinary transaction in breach of the agreement, and that the buyer had not documented that the shares were sold at market price. Accordingly, the earn-out consideration was determined disregarding the sale of these shares.
The case concerned a claim for consideration following the sale of shares in a real estate company. Part of the purchase price was contingent on the company’s future earnings – a so-called earn-out – and the seller was entitled to 19.75 per cent of the company’s net profit for the financial years 2021 and 2022. To protect the seller’s interests, a shareholders’ agreement imposed restrictions on the transactions the company could carry out during the earn-out period: Operations were to be continued as before, without material changes.
The seller argued that a transaction carried out by the buyer in 2022 had unlawfully reduced the company’s profit and thereby the size of the additional consideration. The transaction concerned the sale of two shareholdings to shareholders in the company at 80 per cent of cost, resulting in an accounting loss of close to NOK 3 million. This negatively impacted the amount of consideration applicable under the earn-out.
The Supreme Court held that earn-out agreements generally impose a heightened duty of loyalty on the buyer towards the seller. After control of operations has been transferred to the buyer, the seller cannot influence transactions that may potentially reduce the consideration. The buyer, on the other hand, may have a self-interest in transactions that reduce the consideration without a corresponding reduction in the company’s actual value. This asymmetry means that the buyer may to some extent be obliged to safeguard the seller’s interests, even if doing so comes at the expense of the buyer’s own interests.
The Supreme Court found that the share sale was an extraordinary transaction in breach of the shareholders’ agreement. The sale was not driven by business considerations relating to the investments, but by the need to raise liquidity for bonus payments. The seller was entitled to have the earn-out calculated as if the loss had not occurred.
The Supreme Court also emphasised that the buyer had not documented that the shares were sold at market price. It was the buyer who was best placed to secure evidence that the value was correct, and the duty of loyalty meant that doubt on this point had to be borne by the buyer.
The judgment is important for anyone entering into agreements with earn-out mechanisms. It clarifies that the buyer has a heightened duty of loyalty during the earn-out period, and that extraordinary transactions that reduce the consideration may constitute a breach of contract. Buyers should ensure that transactions that may be seen as "unusual" during the earn-out period are well documented and not contrary to the seller’s interests.
Public procurement: The contracting authority must prove that it would have cancelled the competition
On 29 April 2026, the Supreme Court delivered a judgment clarifying who bears the burden of proof when a public contracting authority claims that a tender competition would in any event have been cancelled. The majority held that the contracting authority – not the unsuccessful tenderer – must substantiate the hypothetical course of events that the competition would have been cancelled had the winning tender been correctly rejected.
The case concerned a municipality which awarded a construction contract for water and sewage works to the tenderer with the lowest bid, even though said tenderer had not documented compliance with the qualification requirements within the deadline. The Norwegian Complaints Board for Public Procurement concluded that the municipality had breached the public procurement rules. The unsuccessful tenderer claimed compensation for lost profits. The municipality objected that it would in any event have cancelled the competition had the winning tender been rejected, so that the unsuccessful tenderer would not have been awarded the contract.
The Supreme Court majority took as its starting point the general principles of the law of damages: the tortfeasor, as a general rule, bears the risk of uncertainty as to what would have hypothetically occurred if the error is assumed not to have taken place. There were no grounds for a special rule in public procurement law.
The majority noted that the municipality’s letter referring to a possible cancellation was sent after the award had already been challenged, and that no documentation existed showing that the municipality had genuinely assessed the consequences of cancellation. The municipality had consequently not demonstrated that the competition would have been cancelled, and the uncertainty had to be borne by the municipality.
The minority (two justices) held that the tenderer must prove that the competition would not have been cancelled.
The judgment strengthens the position of unsuccessful tenderers in damages claims. Public contracting authorities seeking to defend themselves by arguing that the competition would “in any event” have been cancelled must themselves prove that this was a genuine alternative – preferably through contemporaneous documentation showing that cancellation was in fact considered. Without such documentation, the uncertainty will be borne by the contracting authority.
Class action law suits: Individual issues do not bar class actions
On 12 May 2026, the Supreme Court issued a ruling on the right to bring class action proceedings. The ruling establishes that courts may not reject a class action solely because certain issues — such as whether claims are time-barred — call for individual assessment of each group member's circumstances. Before reaching that conclusion, courts must first evaluate whether the dominant aspects of the case concern questions that are common to the group as a whole. Because the lower court had not carried out that overall assessment, the Supreme Court found their reasoning insufficient and returned the case for reconsideration.
The background was a class action brought by Norwegian car owners against Volkswagen AG and the Norwegian importer Harald A. Møller AS. The car owners claimed a price reduction for vehicles affected by the so-called "Dieselgate". The question for the Supreme Court was whether the case could be pursued as a class action, a special form of proceedings where the claimants may act as a group through a group representative, rather than as individual parties.
Both the District Court and the Court of Appeal dismissed the class action. The reason was that the requirement in the Norwegian Disputes Act – that the claims must be based on "the same or substantially similar factual and legal basis" – was not met. The lower courts placed decisive weight on the fact that the question of limitation of claims required individual assessments for each group member.
The Supreme Court disagreed. The Supreme Court pointed out that the courts must consider whether the dominant aspects of the case concern common issues. If so, it is not decisive that there are also individual issues relating to other parts of the case. Neither the District Court nor the Court of Appeal had sufficiently assessed this. The ruling was therefore set aside, and the Court of Appeal must reassess whether the conditions for class action proceedings are met.
The ruling clarifies that the courts must assess whether the dominant aspects of the case concern common issues, even where decisive questions such as limitation may require individual assessments. What impact this will have on the outcome of this particular case remains to be seen.
Thommessen is assisting Volkswagen AG in this case.
Company law: Misleading response about company finances led to personal liability
On 27 May 2026, the Supreme Court confirmed that a chairman of the board and general manager can be held personally liable for a company’s debts if they provide misleading information about the company’s financial situation. It was considered negligent that the chairman confirmed that financing was in order, despite the company already being insolvent.
The case concerned a construction company in Tromsø that ordered doors and windows worth close to NOK 300,000. When the supplier, upon sending the order confirmation, asked whether the financing was in order, the chairman replied: “Financing is fine, you don’t need to worry about that.” The goods were delivered, but the company never paid the invoice. Bankruptcy proceedings were opened in January 2023, and claims totalling NOK 17 million were filed in the estate with no assets available to cover creditors.
The Supreme Court took as its starting point that the limited liability company form means that shareholders are not personally liable for the company’s obligations, but that personal liability for company management may nonetheless arise. “Something special” is required to pierce the limitation of liability.
With reference to the earlier Ulvesund judgment, the Supreme Court accepted that company management has a certain latitude to attempt to rescue an insolvent company without incurring personal liability. The prerequisite is that there is a realistic hope of saving the company, and that management throws in the towel within a reasonable time.
Decisive for the Supreme Court, however, was that the chairman gave positively misleading information when asked about the company’s finances. The Supreme Court stated that it lies at the core of the duty of loyalty in contractual relationships to refrain from providing incorrect or misleading information. If this duty is breached, the path to personal liability will be short – regardless of the latitude that company management otherwise has to attempt to rescue the company.
The judgment serves as a reminder that company management has limits on what information it can provide to counterparties, particularly where the company is insolvent. Management may have a certain room to work towards saving the company without notifying all creditors, but cannot actively provide misleading information about the company’s finances. Suppliers and other creditors should for their part be mindful of asking questions about the counterparty’s financial position.
Tax law: Can the tax authorities copy private mobile phones?
On 15 April 2026, the Supreme Court issued a ruling on the tax authorities' right to copy the contents of a private mobile phone. The majority concluded that the copying was lawful, while the minority disagreed.
The background was an audit the tax authorities had carried out at several companies. A person serving as CEO and board chair of the companies was asked to hand over his private mobile phone for copying. He refused, and sought an interim injunction to prevent the tax authorities from reviewing the copied material. Neither the District Court nor the Court of Appeal granted the injunction.
The question for the Supreme Court was, first, whether the contents of a private mobile phone may form part of the "business's archives" under the Tax Administration Act, and second, whether the copying constituted a proportionate interference with the right to privacy under Article 8 of the ECHR (European Convention on Human Rights).
The majority agreed with the lower courts that information stored on a private device may form part of the business's archives, provided the information belongs to or forms a natural part of the business's operations. The decisive criterion is not who owns the storage device, but whether the business owns the information in question. Otherwise, companies could avoid scrutiny by ensuring that key information is only stored on privately owned devices.
The majority then assessed the question under Article 8 of the ECHR, and concluded that the copying constituted an interference with the right to privacy, but that the interference was proportionate. The key consideration was that the tax authorities had established procedural safeguards: private content would be filtered out before the auditor gained access, and the taxpayer would have the right to be present during the review.
The minority concluded that the decision was invalid. According to the minority, the tax authorities should have assessed whether the objective of effective tax auditing could instead be achieved through other, less intrusive measures available to them. If other measures would have been sufficient, they should have been chosen. As the tax authorities had not sufficiently assessed this, the minority held that the decision was invalid.
The ruling clarifies that the tax authorities may have the right to copy the contents of private phones. However, this is contingent on key procedural safeguards being in place to ensure that private content is shielded from review.
Certain nuances to this emerged when Oslo District Court delivered a judgment in a similar case concerning the copying of private mobile phones on 28 May 2026. The District Court interpreted the Supreme Court's recent ruling and offered noteworthy clarifications: The District Court agreed with the Supreme Court that the contents of private mobile phones could be considered part of the "business's archives", but held that this could only apply in narrow circumstances where it was probable that the phone contained business information that could not be obtained elsewhere. The fact that the phone was used in a work context was therefore not in itself sufficient for the contents to be considered part of the archives.
These nuances are important and have practical significance for ensuring that disproportionate interferences with the right to privacy are avoided. As the District Court's judgment may still be appealed by the tax authorities, further clarifications on this issue from the higher courts cannot be ruled out.
Thommessen assisted the appellant in HR-2026-853-U.
Tax law: "Misclicks" preclude imposition of tax surcharge
On 21 April 2026, the Supreme Court delivered a judgment clarifying when errors in the digital completion of a tax return preclude the imposition of a tax surcharge. An unintentional misclick in a drop-down menu was held to constitute an “obvious calculation or typing error”, and the decision to impose a tax surcharge was therefore set aside.
An employee of the company completed the trade specification form (Nw. næringsoppgave) using a standard year-end accounting programme. By mistake, the employee selected the option “Retrieve from securities register” instead of “Retrieve from chart of accounts” in a drop-down menu. The error resulted in a dividend of approximately NOK 155 million being deducted twice, so that taxable income was reported too low. The Norwegian Tax Administration imposed a tax surcharge of nearly NOK 6.9 million.
The Supreme Court majority held that unintentional keystrokes – such as selecting the wrong option in a drop-down menu – must be treated in the same way as traditional clerical errors. The decisive criterion is whether the entered information does not correspond with what the person completing the form intended to report. Errors caused by misunderstanding the information to be entered, or pure omissions, fall outside the scope of the exception. The majority found that the employee’s misclick was unintentional, and was considered a typing error within the meaning of the law.
The majority also found that the error was “obvious”. The trade specification form is structured so that reversals on page 4 must have a corresponding entry among the income items on page 2. Here, there was no income item that could explain the reversal, and the tax authorities could not have failed to discover that something was wrong. The authorities are not required to understand what the error consists of – only that there is an obvious error.
The minority (two justices) held that the error in question could not be regarded as a typing error. They emphasised that the change required a manual operation in several steps and appeared to be a deliberate choice, and that the employee’s testimony indicated an error of judgment rather than a mere typing error.
The judgment clarifies that misclicks and erroneous selections when completing tax returns may constitute “typing errors” within the meaning of the law. For businesses, this provides a potential safeguard against tax surcharges where the error was unintentional and easy for the tax authorities to detect.
Civil procedure: Can the state be held liable for courts' EEA errors?
On 11 June 2026, the Supreme Court issued a ruling on whether the state may be sued for damages caused by a court's misapplication of EEA (European Economic Area) law – so-called EEA state liability for court decisions. The Supreme Court held that such liability exists in Norwegian law, but only where a court of last instance has manifestly breached EEA law.
The background was a company that in 2017 had been denied taxi licences by the municipality of Oslo. The company argued that the refusal was contrary to EEA rules on freedom of establishment, and brought damages claims against the municipality and subsequently against the state. The claims were unsuccessful, and an appeal to the Supreme Court was not admitted. The company then brought new proceedings against the state, arguing that the courts had manifestly misapplied EEA law.
Under national legislation, the Courts of Law Act imposes strict conditions for bringing damages claims against the state for court decisions. None of those conditions were met. The question for the Supreme Court was whether EEA law nevertheless required the claim to be admitted.
The Supreme Court concluded that EEA law encompasses state liability for decisions by courts adjudicating at last instance, and that national procedural rules such as the Courts of Law Act cannot bar such claims. This was in line with an advisory opinion from the EFTA Court, which the Supreme Court found no reason to depart from.
The Supreme Court clarified that liability only applies to decisions by the Supreme Court or its appeals selection committee – not to decisions by the District Court or the Court of Appeal. The company, which had claimed damages on the basis of errors by both the Court of Appeal and the Supreme Court, was therefore only allowed to proceed with the latter claim.
The ruling is important and establishes for the first time that EEA state liability for court decisions applies in Norwegian law. The consequence is that the state may be held liable in damages where the Supreme Court or its appeals selection committee has manifestly breached EEA law.
Arbitration: Is a parent company that has issued a parent company guarantee bound by an arbitration agreement in the underlying contract?
On 15 April 2026, the Supreme Court's Appeals Selection Committee delivered a ruling, determining that a parent company that had issued a parent company guarantee for a subsidiary's obligations was not bound by the arbitration clause included in the underlying shipbuilding contract. The legal action against the parent company under the guarantee could therefore not be dismissed from the ordinary courts.
The main case concerned the settlement following cancellation of a shipbuilding contract that contained an arbitration clause. Buyer's parent company had issued a parent company guarantee for its subsidiary's obligations under the shipbuilding contract. When the yard later brought an action against the parent company under the guarantee, the parent company argued that the action should be dismissed because the dispute fell under arbitration. Both the District Court and the Court of Appeal dismissed the case.
The Supreme Court stated that the courts must dismiss actions concerning legal relationships that fall under arbitration, which in accordance with the Norwegian Arbitration Act requires that the parties have concluded an arbitration agreement. Whether an arbitration agreement has been concluded must be assessed in accordance with general principles of Norwegian contract law. With reference to an earlier Supreme Court precedent (Rt-2010-748), the Supreme Court emphasized that a waiver of the right to have a dispute heard by the courts under Article 6 of the European Convention on Human Rights must be made freely and on an informed basis, so that strict requirements apply before arbitration can be found to have been agreed. Neither the guarantee, the group affiliation, nor the interest in a unified and efficient resolution of the dispute was sufficient to make the parent company a party to the arbitration agreement. The Court of Appeal's ruling was therefore set aside.
The ruling is a reminder that an arbitration agreement would normally not extend to related agreements or to parent company guarantees. An arbitration clause must normally be included in the guarantee, if desirable.
