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Conditions for recognition and enforcement
Which types of judgment (eg, monetary judgments, mandatory or prohibitory orders) are enforceable in your jurisdiction and which (if any) are explicitly excluded from recognition and enforcement (eg, default judgments, judgments granting punitive damages)?
The regulation of recognition of foreign judgments in the Dispute Act concerns civil claims (ie, private-law claims). Foreign judgments regarding public claims (eg, taxes and fees) are thus not subject to recognition or enforcement in Norway. According to Schei’s Commentary on the Dispute Act (2013), litigation costs granted by a foreign judgment are not normally regarded as private-law claims, but may still be covered by binding legal force, provided that the necessary foundation by law or treaty prevails. Other than this, the Norwegian legal system generally does not distinguish between the different types of civil judgment referred to in the question.
How are foreign judgments subject to appeal treated?
A foreign judgment must be final and binding in order to be enforceable in Norway. An award may be recognised in Norway before legal force prevails, but then under this same reservation – that it is not yet final and binding. Remedies for appeal will follow the rules of the country of origin (see Skoghøy, Litigation, 2017, p 86).
However, under the Lugano Convention on the Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters a court may postpone the processing of a demand for recognition if there is a pending appeal, or the judgment is contested, in the country of origin. According to domestic law, and in the absence of security from the defendant, a recognised judgment not yet in legal force may serve as basis for the distraint. However, disposal of collateral cannot take place until legal force has been established.
What are the formal and documentary requirements for recognition and enforcement of foreign judgments?
Depending on the relevant treaty, it can generally be assumed that a certified copy of the original judgment and an approved translation will be needed. Approval by a notary public and apostille are recommended.
Documentation to prove that there was an arbitration agreement or another basis for arbitration may also be required for arbitral judgments.
Article 54 of the Lugano convention requires the attestation of specific forms, but the court may find other documentation satisfactory. If the judgment is a judgment by default, the applicant for enforcement must also substantiate that the defendant was notified of the introductory letter with satisfactory notice, although will this not be tried by the first-instance court. As a general rule the defendant will always be able to dispute the recognition of the judgment, or the claim as such, in relation to a request for enforcement in Norway. Hence, even with all formal requirements in place, the enforcement of a foreign judgment may be confronted with difficulties if the defendant decides to use all means to argue against the validity of the judgment or the amount outstanding.
What substantive requirements (if any) apply to the recognition and enforcement of foreign judgments? Are enforcing courts in your jurisdiction permitted to review the foreign judgment on the merits?
Ordinary judgements A foreign judgment will be subject to recognition and enforcement only as far as it concerns a civil claim. Foreign judgments regarding public claims (eg, taxes and fees) are not subject to recognition or enforcement in Norway.
Further, a foreign judgment will not be recognised or enforced if doing so would be incompatible with mandatory Norwegian law or fundamental principles of the Norwegian legal order ("public order").
Further substantive requirements may apply by virtue of relevant conventions or treaties.
Judgements from arbitration courts The review of arbitral judgments may be more intense. The Arbitration Act sets out a range of reasons that entitle the courts to reject an application for recognition, with regard to the service of process, judicial questions and formal requirements. This may, among other things, comprise an evaluation of whether:
- principles of notice and contradiction have been followed;
- the procedure corresponds with the laws of the seat of arbitration and the agreement between the parties; and
- the judgment is binding or has possibly been set aside by a court at the seat of arbitration or in the country to which the legal regulations applied belong.
If under Norwegian law arbitration is not applicable to the dispute, the court must deny recognition and enforcement ex officio.
Enforcement Before enforcement, the deadline for payment of a claim must have expired, so that a breach of obligation has already occurred. In some cases, security may prevent enforcement.
Review on the merits Enforcing courts cannot review a foreign judgment on its merits, except for the public order limitation and the prohibition to controvert mandatory domestic law. This latter reservation is not to be understood literally and may, according to Skoghøy’s Litigation (2017), p 88, be regarded as an inaccurate reference to the public order rule (see also Schei, Commentary on the Dispute Act, 2013, which posits some reservations regarding this rule).
However, substantive review is sometimes required in order to identify the problems addressed and decided by the judgment and to assess potential lis pendens (ie, pending suit) or legal force problems.
What is the limitation period for enforcement of a foreign judgment?
The enforcement of judgments must be repeated every 10 years in order for a judgment to remain valid. The judgment must generally remain enforceable in the country of origin.
Grounds for refusal
On what grounds can recognition and enforcement be refused?
Recognition and enforcement applications may for instance be refused because:
- they are not covered by an applicable convention, treaty or piece of Norwegian legislation;
- sufficient documentation has not been provided;
- the claim is not materially enforceable; or
- the judgment conflicts with a prior domestic or enforceable judgment, public order or mandatory Norwegian law.
The court must deny recognition and enforcement of an arbitral judgment which, according to domestic law, could not be resolved by arbitration (Section 46 of the Arbitration Act).
Service of process
To what extent does the enforcing court review the service of process in the original foreign proceedings?
As far as judgments from foreign arbitration courts are concerned, the enforcing court may refuse to recognise or enforce the judgment if one of the parties was not given satisfactory notice before the proceedings. The enforcing court may also review the court of origin’s service of process.
Regular foreign courts judgments will depend on the relevant convention, treaty or agreement that forms the basis for the recognition and enforcement of judgments from the courts in that country. However, normally there will be provisions stating that the judgment should not be recognised if the defendant was not given satisfactory notice before the proceedings.
What public policy issues are considered in the court’s decision to grant recognition and enforcement? Is there any notable case law in this regard?
The courts will not recognise a judgment that conflicts with public order. This principle applies to judgments from ordinary and arbitration courts. As for judgments from ordinary courts, case law establishes that the scope of this exception is narrow and reserved for judgments in clear conflict with Norwegian ethics and common social views (Schei, Commentary to the Dispute Act, 2013, p 689).
What is the extent of the enforcing court’s power to review the personal and subject-matter jurisdiction of the foreign court that issued the judgment?
Under the Arbitration Act, the enforcing court may review a list of aspects regarding jurisdiction and the legality of the arbitration court.
Judgments from ordinary courts will depend on the relevant convention, treaty or agreement that forms the basis for recognition and enforcement of judgments from the courts in that country. Norwegian courts do not as a main rule review the jurisdiction of the foreign court, but for certain types of case – including cases regarding insurance claims and consumer contracts – the Norwegian courts will ensure that the foreign judgment conforms with mandatory provisions in the Lugano Convention on the Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters on jurisdiction.
Concurrent proceedings and conflicting judgments
How do the courts in your jurisdiction address applications for recognition and enforcement where there are concurrent proceedings (foreign or domestic) or conflicting judgments involving the same parties/dispute?
Under the Lugano convention, the courts cannot enforce a judgment between the same parties that conflicts with a prior judgment in the enforcing jurisdiction or with an earlier foreign but enforceable judgment between the same parties regarding the same subject matter.
If a foreign judgment is recognised as legally binding in Norway before concurrent proceedings regarding the same claim have been concluded, the Norwegian court probably must reject further trial of the dispute.
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