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What are the validity requirements for an arbitration agreement?
Arbitration agreements may comprise current and potential disputes under a defined legal relationship between the parties. Only disputes at the disposal of the parties may be subject to arbitration. In addition, the ordinary rules and principles of formation and validity under Norwegian contract law apply to arbitration agreements.
There is no particular form prescribed; agreements need not be executed in writing. However, they may be declared void if they are entered into under duress, fraud or undue influence, or if the agreement is deemed unreasonable pursuant to Section 36 of the Contract Act.
There are some additional validity requirements, including requirements to written forms, that apply to arbitration agreements in special cases (eg, in relation to carriage of goods and consumer disputes).
The validity requirements in relation to consumers are that:
- agreements entered into before a dispute has arisen are not binding on the consumer; and
- agreements must be executed in a written, separate document signed by both parties.
Enforcement of agreements
How are arbitration agreements enforced in your jurisdiction? What is the attitude of the national courts towards arbitration agreements?
Arbitration agreements are enforceable in Norway. The Norwegian courts will dismiss claims or actions subject to arbitration at a party’s request, provided that the request is made before or at the latest when reviewing the merits of the claim or action. The party which asserts that the claim or action is subject to arbitration must prove the existence of the arbitration agreement. If one of the parties claims that the arbitration agreement is void, the court has jurisdiction to decide on its validity (and the rest of the case, provided that the agreement is actually declared void). However, if arbitral proceedings are already commenced when the action is brought before an ordinary court, the court will dismiss the action, unless it is clear that the arbitration agreement is void. If the arbitral tribunal has declared that it has jurisdiction, the decision can be appealed to the ordinary courts.
Can an arbitral tribunal with its seat in your jurisdiction consolidate separate arbitral proceedings under one or more contracts, and, if so, in what circumstances?
The Arbitration Act contains no consolidation clauses. Accordingly, the tribunal cannot consolidate separate arbitral proceedings without the parties' consent.
Choice of law
How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
In the absence of an agreement between the parties regarding the substantive law applicable to the dispute, the arbitral tribunal will apply the substantive law determined by Norwegian private international law. Norwegian private international law is influenced by the rules regarding choice of law in the European Union (ie, the Rome Convention and Rome I Regulation), and includes also mandatory rules of law to protect, for example, employees, consumers, insured parties and trade agents from entering into unfavourable (choice of law) agreements, in addition to the ordre public rule.
Are there any provisions on the separability of arbitration agreements?
Yes – the doctrine of separability is codified in Section 18 of the Arbitration Act. The act states that:
- arbitration agreements must be regarded as separate agreements, independent from the other parts of the contract; and
- an arbitral tribunal may declare the contract void without that leading to the arbitration agreement being declared void.
Are multiparty agreements recognised?
Although it is not expressly stated in the Arbitration Act, it is clear that multiparty agreements are recognised under Norwegian law (eg, in the preparatory works to the act).
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