In this edition of Thommessen Dispute Update, we highlight key developments from Q3 2025 in Norwegian litigation and arbitration – with direct relevance for international stakeholders involved in the Norwegian legal landscape.
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".
Arbitration news
"Heroic Idun" Arbitral Award
In a recent international arbitration in Oslo, the tribunal ruled in favor of the Norwegian Shipowners' Mutual War Risks Insurance Association ("DNK") in a war risk case initiated by a foreign shipowner. The shipowner was not entitled to total loss compensation and sue and labour (mitigation) costs under the war risks insurance. DNK was also awarded legal costs. The Tribunal consisted of a Norwegian professor (chairman), and one Swedish and one Danish lawyer. The arbitration was conducted in accordance with NOMA's rules and best practice guidelines.
Thommessen assisted DNK throughout the entire case and is pleased to see that DNK achieved a great result in this arbitration, in line with DNK's positions. The four-week hearing took place in Oslo in May 2025, and the tribunal was able to render a detailed and thorough arbitral award already on 5 August 2025.
In short, the Owners of the large crude carrier (VLCC) "Heroic Idun" claimed total loss compensation of USD 180 million under the Nordic Marine Insurance Plan, arguing that a nine-month detention of the Heroic Idun in Equatorial Guinea and Nigeria in 2022-2023 was caused by a war peril. The key question was whether the arrest and detention of the vessel was "made for the furtherance of an overriding … political objective". In brief, this war peril concerns interventions by foreign state powers typical for war or times of crisis.
In this case, the Heroic Idun had escaped from a Nigerian Navy vessel named Gongola and raised distress/piracy alerts on the VHF system against the Gongola. The Gongola had initially approached Heroic Idun for a routine inspection due to the vessel's lack of clearances at an offshore oil terminal. Instead of complying with orders and following the Navy ship, the Heroic Idun turned south at full speed. The Heroic Idun was a few days later arrested by Equatorial Guinea, assisting Nigeria upon Nigeria's request. Later, after an extradition process and diplomatic communication, the vessel and crew were transferred to Nigeria for criminal prosecution. The tribunal held that the arrest and detention was motivated by law enforcement (criminal prosecution). Some irregularities and concerning aspects regarding the arrest and lengthy detention could not bring this detention into a war peril.
Additionally, the Owners of the Heroic Idun claimed cover for a number of different costs and alleged losses; these were primarily sought covered under the rules regarding sue and labour (mitigation) costs. The main argument was that the bridge team on board the Heroic Idun allegedly believed that the vessel which had identified itself as the Nigerian Navy could be pirates and therefore decided to sail away. Long story short: The tribunal held that "piracy", which is also a named war peril under the Nordic Marine Insurance Plan, only encompasses an act of piracy. An imagined or perceived pirate attack is not piracy. Neither were other conditions for sue and labour (mitigation) costs, including that the measures must be of an extraordinary nature, fulfilled.
The arbitral award will soon be published and available to everyone. Thommessen will follow up with a more detailed newsletter on the Heroic Idun case.
Attorney-client privilege: Does it also apply when a third party is present at discussions?
On 6 October 2025, the Supreme Court issued a ruling regarding a request for access to evidence concerning correspondence between an attorney and a client, in this case an audio recording from a meeting. The question was whether information communicated between client and lawyer, which was in principle covered by the attorney-client privilege, should nevertheless be disclosed because the information was also shared with a third party. The Court of Appeal concluded that the information had to be disclosed, whereas the Supreme Court found that the Court of Appeal had relied on an incorrect interpretation of the law and set aside both the Court of Appeal’s and the District Court's rulings. The District Court must now reconsider the request.
The dispute arose from a refinancing of the listed Norwegian company Solstad Offshore ASA in 2023. The refinancing included transactions with Aker Capital AS, one of Solstad Offshore’s shareholders. In 2024 Kistefos AS and Kistefos Investment AS claimed damages from board members and the CEO of Solstad Offshore, as well as from Aker Capital, alleging that the refinancing involved unequal treatment of the shareholders, which caused them financial loss. Kistefos also sued Solstad Offshore’s financial adviser, Pareto Securities AS, alleging complicity and breach of professional duty.
The issue before the Supreme Court was Kistefos’ request for access to an audio recording that Pareto held from a digital meeting on 9 October 2023, between Solstad Offshore and Aker Capital, in which lawyers from Solstad Offshore and Aker Capital attended. Pareto participated in the meeting as financial adviser and had made a recording of the negotiation meeting as required under the Securities Trading Act. Solstad Offshore and Aker Capital did not consent to the disclosure of the recording, and Pareto therefore refused disclosure with reference to section 22-5 of the Disputes Act.
The Supreme Court stated that the recording contained information which, by its nature, was “entrusted” to the lawyers, and thereby covered by the attorney-client privilege. On whether the evidentiary prohibition nevertheless did not apply since the information had been shared with the third party Pareto, the Supreme Court conducted a thorough review of case law. The Supreme Court summarized that such information may only be disclosed if “the person whom the evidentiary prohibition is intended to protect consents or must otherwise be considered to have relinquished the protection of confidentiality between lawyer and client”. It must be assessed on a case-by-case basis whether, and if so to what extent, the client has relinquished such protection.
The fact that information has been communicated to persons “in a close commonality of interest or in a cooperative relationship with the client” does not as such mean that the confidentiality right has been relinquished with respect to others, for example opposing parties in subsequent litigations. The Supreme Court stated that contractual negotiations can constitute such a commonality of interest toward outsiders, depending on the circumstances. Relevant factors to be considered are; the manner in which the information was passed on; the content and the purpose of the sharing, including whether the sharing was necessary for the lawyer to carry out their assignment.
Finally, the Supreme Court stated that communication between Pareto and, respectively, Solstad Offshore and Aker Capital (i.e., not lawyer correspondence) is not covered by the evidentiary prohibition, and that the lower courts on the renewed hearing should assess whether parts of the recording could be disclosed.
The ruling is consistent with a series of Supreme Court decisions emphasizing the importance of protecting the attorney-client relationship. Prohibition for access to attorney-client communication is considered important.
Corporate Law: Limits of impartiality at the General Meeting
On 25 September 2025, the Supreme Court addressed the limits of impartiality at the general meeting where the issue is whether to bring claims on behalf of the company against shareholder(s) and their related parties.
Contrary to what applies to board members, the Norwegian Limited Liability Companies Act contains no rule that a shareholder is generally disqualified from voting in cases in which he or she has a particular connection to the matter. Exceptions are cases that (i) concern his or her own liability to the company, and (ii) the liability of others if “he or she has a material interest in the matter that may be contrary to the company’s interests”.
In this case, the company had sold its business to a NewCo wholly owned by a group of shareholders. The question was whether those shareholders were disqualified from voting on whether the company should bring a claim against NewCo for rescission of the transaction.
The Supreme Court concluded unanimously that the owners of NewCo were disqualified, and emphasized that: (i) It is not necessary to demonstrate that the shareholders in question have a material interest in the matter. It suffices that the interest may be material. (ii) In assessing whether a conflict of interest may exist, a fairly high-level mapping of the interests is sufficient. (iii) The court need not exercise any appreciable restraint in reviewing whether there is a real possibility of a conflict of interest. (iv) If a shareholder has a particular material interest, little is required for disqualification.
The judgment is a reminder that the impartiality rule in the Limited Liability Companies Act is applied relatively strictly. The provision may be an important instrument for minority shareholders to pursue matters where, for example, mispricing is alleged in transactions between the company and related parties of the shareholder majority.
Employment law: No duty to reassign in cases of summary dismissal
The Supreme Court clarified in June 2024 that employers have a limited and situation-specific duty to reassign employees terminated for reasons attributable to the employee. On 5 September 2025, the Supreme Court clarified that this duty does not extend to cases involving summary dismissal.
The case concerned a nurse who was summarily dismissed after striking a service user with a mild intellectual disability in the face with an open hand. The employee held a 60 percent clinical position and a 40 percent administrative position at the municipality. Both the District Court and the Court of Appeal found the dismissal invalid on the grounds that the municipality had not considered reassigning the nurse to a full-time administrative role.
The question for the Supreme Court was whether a duty to offer an alternative position exists in cases of summary dismissal, and if so, to what extent. The Supreme Court emphasised that summary dismissal arises in situations involving serious breaches of duty, where the employer usually can no longer have trust in the employee. In such circumstances, the duty to reassign does not apply.
In cases of summary dismissal, the question is rather whether termination of employment could have been sufficient. If so, the limited and situation-specific duty to reassign may still apply.
Board liability: Quantification of a damages claim for failure to file for bankruptcy
On 23 September 2025, the Supreme Court issued a judgment clarifying how a claim for damages by a bankruptcy estate against the company’s chair of the board for breach of the duty to file for bankruptcy is to be quantified. The Supreme Court held that the damages should be calculated based on the reduction in the company’s financial position from the time insolvency should have been filed, until it was actually filed.
The case concerned a claim for damages by a bankruptcy estate against a former chair of the board of a bankrupt company who had been sentenced to imprisonment for violation of the duty to file for bankruptcy. The issue was whether the damages should be quantified to the reduction in the company’s financial position from the time insolvency should have been filed until it was actually filed, or whether the damages should be quantified to the difference between the dividend that would have been paid to creditors had insolvency been filed at the correct time, and the dividend actually received in the bankruptcy proceedings. The latter quantification method would normally lead to lower damages.
As noted, the Supreme Court's majority found that the damages should be calculated based on the reduction in the company’s financial position from the time insolvency should have been filed until it was actually filed. The Supreme Court placed decisive weight on the view that calculating damages by reference to the company’s diminished financial position both aligns with the general principles of the Limited Liabilitites Companies Act determining liability and accords with the core insolvency-law principle that the estate steps into and pursues the company’s claims.
The judgment entails that if a company incurs debt after the board should have filed for bankruptcy, the incurrence of debt may form part of a future claim for damages by the company’s bankruptcy estate against the members of the board for breach of the duty to file for bankruptcy.
Building permit remained in force even though construction progress was slow
On 23 September 2025, the Supreme Court issued a judgment clarifying the degree of progress required for building permits under applicable planning and building regulations.
In 2001, a homeowner was granted a permit to build a house. In 2014 the municipality argued the permit had lapsed under the Planning and Building Act because only groundwork had been done and construction had stopped. The municipality ordered the site restored and imposed a coercive fine when the builder did not comply. The builder refused to pay the fine and sued the municipality to prevent enforcement, arguing that sufficient work was done to keep the permit alive.
Unlike the Court of Appeal, The Supreme Court concluded the law does not require completion within a “reasonable time” to prevent the building permit from lapsing. The Supreme Court's majority held that, to be considered ongoing, works carried out over any two‑year period must make a real contribution to progress and ultimate completion. Trivial work is disregarded. The work that had been done by builder in this case met that test. Consequently, the permit had not lapsed and the restoration order and the coercive fine were invalid.
Two judges dissented, taking a stricter view that the two‑year period must include work of more than negligible scope to prevent the lapsing of the building permit. The two dissenting judges held that the total work done after 2009 was negligible and had not contributed towards the completion of the work, and therefore that the permit should be considered lapsed.
The ruling clarifies what level of progress is required for building permits to remain valid.
The Supreme Court clarifies the scope of buyers' duty to inspect in private home sales
On 11 September 2025, the Supreme Court considered whether the defect claims of a buyer of a private home were barred due to the buyer's failing to carry out inspections. The Supreme Court held that the sellers had only given general risk warnings about moisture problems and mice, which did not impose a duty on the buyers to undertake further inspections. The buyers’ claims remained valid and the Court of Appeal’s judgment was set aside.
The case concerned a private sale of a house. A few months after handover, the buyers sought to terminate the purchase because of mice infestation, defects in the exterior cladding and an incorrectly installed vapor barrier in a garage extension. The sellers argued that the buyers were barred from invoking these defects because they had not complied with their duty to inspect pursuant to Section 3-10 of the Act on the Sale and Transfer of Property.
In the sellers' disclosure form, it was stated that they had occasional mice issues, but that this was fixed in 2020. The buyers also noticed mouse droppings at the viewing. Regarding cladding, the buyers had ticked a general box indicating some unskilled work had been done on “roof, facade, chimney/heating appliance, terrace, garage, storage or similar”, without providing any further details.
The Supreme Court highlighted a recent legislative change that shifted risk for hidden (non-visible or latent) defects from buyer to seller. The Court found that a general risk warning normally does not trigger a duty for the buyer to carry out complex inspections that go beyond a normal viewing. If a seller expects the buyer to perform more extensive or specialist checks, the seller must give the buyer a specific reason to do so.
The Supreme Court concluded the moisture and mice issues were not reasonably discoverable at the viewing and the sellers had not given the buyer any specific reason to do further investigations. Therefore the buyers had not lost their defect claims. The judgment has practical significance for private house transactions, and clarifies the level of a seller's informational disclosure before a buyer can be barred from claiming defects.
Procedural news
Can lawyers be called to the witness stand?
On 9 September 2025, the Supreme Court issued a ruling regarding lawyers as witnesses. The question was whether a lawyer could be called as a witness, or whether the evidentiary prohibition applicable to lawyers – rules on attorney-client privilege – prevented this. The Supreme Court concluded that the lawyer could be used as a witness, but that the lawyer’s testimony could not encompass any attorney-client privileged information.
The case concerned a claim for compensation in the aftermath of a criminal case. The claimant B had for many years worked to have the criminal case reopened. This contributed in the case being reopened and the previously convicted person, A, being acquitted. Following the acquittal, B brought a lawsuit against A, claiming compensation. B argued that he had been engaged by A and was therefore entitled to payment for his work.
To prove this, B called A’s former lawyer as a witness. A opposed this and sought to have the witness excluded. In A’s view, the lawyer would testify about information that was entrusted to him in his capacities as A's lawyer, and such disclosures were therefore covered by the evidentiary prohibition in section 22‑5 of the Dispute Act.
The Supreme Court concluded that the lawyer could be heard as a witness. The Supreme Court held that the testimony would relate to topics not covered by the evidentiary prohibition, since the testimony would concern circumstances that were already generally known to the public and matters that fell outside the scope of the role as A's lawyer. The lawyer could therefore testify about such issues without revealing privileged matters.
The lawyer could therefore be called as witness. The evidentiary prohibition regarding privileged matters would have to be taken into account during the witness examination, so that no privileged information is disclosed.
The Supreme Court clarifies the rules of arrest regarding legal costs
On 23 September 2025, the Supreme Court issued a ruling regarding arrest to secure legal costs. The ruling supplements a ruling from March this year and provides practical clarifications of the rules on arrest. In total, the rulings clarify that arrest for legal costs can only be granted once there is a judgment awarding legal costs, but that it is not required that the judgment awarding legal costs is final and enforceable.
The claimant first sought an arrest for future legal costs before the case had even been heard in the District Court. The matter was appealed to the Supreme Court and assessed in March 2025. The Supreme Court found that arrest could not be granted before a judgment awarding legal costs was given. The Court of Appeal’s ruling was therefore overturned.
By the time the Court of Appeal ruled on the arrest again, the District Court had ruled in the main case. The claimant therefore argued that there now existed a judgment awarding legal costs and that, in line with the earlier Supreme Court ruling, arrest could be granted. The Court of Appeal, however, held that arrest could not be granted until the judgment was final and enforceable.
The arrest issue again reached the Supreme Court. The Supreme Court concluded, unlike the Court of Appeal, that arrest could be granted at this stage. It is thus sufficient that a court decision awarding legal costs exists, even if the decision is not final and enforceable.
Thommessen assisted the respondent in the case.
