Opening statement
Dear friends and colleagues,
This is the tenth edition of BAHR Dispute Resolution Insight. With this publication, we want to share our insight into trends in Norwegian dispute resolution, news about our events and activities and our take on issues that are important for our clients.
A lot of work goes into drafting each article to ensure that they provide an interesting read for both clients and colleagues. With this edition we have chosen to mix things up a bit, and deviate from the traditional format, with a feature interview with two profiled Norwegian judges.
Even though many commercial disputes are referred to arbitration, the public courts remain an important forum for resolving such disputes in Norway. In our view, a key reason for this is the courts’ active desire and efforts to remain a relevant and attractive alternative to arbitration. Litigating cases rather than referring them to arbitration is also important to ensure the continued contribution to the development of law by the courts.
In our first article, District Court Judge Anette Barth and Supreme Court Justice Christian Lund have been interviewed by BAHR and discuss important measures implemented by the Norwegian courts, to meet the corporate
sphere’s need for judges that understand the commercial context of business disputes.
One highlight of the first semester of the year is the Norwegian Arbitration Day. For the third consecutive year, BAHR arranged a pre-conference event at our premises gathering over 100 friends and colleagues. This year’s topic was the significance of privilege issues in international arbitration.
The pre-conference event highlighted the diverse approaches to privilege across jurisdictions and underscored the challenges faced in international arbitration when dealing with privilege issues. The discussion touched upon when to address privilege issues, determining the law and rules applicable to privilege issues, the role of guiding principles and soft law, challenges faced by in-house counsel, and suitable practical solutions. Although this is an area often fraught with confusion and lack of guidance, the panel discussion provided some much-needed clarity.
You can read more about this in our second article
I hope this edition of our Dispute Resolution Insight provides an interesting read.
Atle Skaldebø-Rød Partner
/
Head
of Dispute Resolution E: atska@bahr.no, M: +47 922 87 727
Optimising Dispute Resolution in the Norwegian Courts
How do Norwegian courts adeptly handle large commercial disputes, and are they a dependable choice for companies selecting a dispute resolution mechanism in their contracts? To gain further insight into how the courts ensure they remain a relevant alternative forum for conflict resolution in large commercial disputes, we spoke with two distinguished judges: Supreme Court Justice Christian Lund and Anette Barth, Judge and Department Head at the Oslo District Court. Both bring a wealth of experience across all three levels of the judiciary, complemented by substantial expertise as commercial lawyers.
Businesses regularly face large and high-value conflicts. It could be with a partner, investor, client or vendor, sometimes in bet-thecompany litigation. Who do you trust to resolve that conflict? A tailored arbitral tribunal or the public courts?
Traditionally, the options for tailoring an arbitral process – from the composition of the tribunal to the conducting and progress of the proceedings – have for some industries and
contracts made arbitration a preferred mechanism for resolving corporate and other high-value disputes. But are the courts a worse option than arbitration in such cases?
Anette Barth and Christian Lund are respectively judge and justice in Oslo District Court and the Supreme Court of Norway. Between them, they have vast experience from deciding commercial disputes. Moreover, as former lawyers in private practice, they have an inside
view into what is important for the corporate sphere, when businesses refer their conflicts to dispute resolution.
”The public courts see a number of large commercial disputes, such as construction disputes and disputes where the conflict arises more spontaneously ”, says Justice Lund, noting that certain kinds of disputes are more often subject to arbitration than the public courts. "The courts are actively seeking to attract a greater variety of core commercial disputes", he adds.
It is easy to understand why. For the courts to fulfil their purpose of contributing to the clarification and development of law and legal principles, they must hear cases that relate to such legal issues.
Moderate Specialisation in Norwegian Courts: Balancing Expertise and Generalism in Commercial Disputes
Commercial disputes are often accompanied by the additional challenge that disputed issues and the facts underlying them exist in a larger corporate and commercial context. Therefore,
Anette Barth began her career in the Tax Law Department of the Ministry of Finance before joining us at BAHR, where she worked for seven years. After a period at the law firm Hjort, she was appointed as a judge at the Oslo District Court in 2010. Since 2016, she has been Department Head. In recent years, Judge Barth has been involved in several projects aimed at streamlining and improving the court´s handling of civil disputes.
understanding the dispute often requires insight into how businesses work and operate, and how various business cases form the basis of a contract, partnership or venture.
In face of this, some of the largest district courts have implemented “moderate specialisation” for judges. "The courts have become more professionalised in its dealing with large commercial disputes", says Justice Lund, adding that the courts both want and need large commercial disputes to contribute to the development of law. For the Supreme Court to establish precedent, parties must to some extent refrain from referring their disputes to arbitration or other dispute resolution mechanisms.
The Oslo District Court, which handles many of the large commercial disputes in Norway, has implemented moderate specialisation for construction disputes and other large commercial disputes, Judge Barth explains. All intellectual property disputes are also assigned to certain judges with “moderate specialisation” within this field.
Christian Lund spent many years working as a lawyer in the private sector, including at Norsk Hydro, with us at BAHR, and at Thommessen. From 2006 to 2011, he served as a lawyer for the Office of the Attorney General. He was appointed as an appellate judge at the Borgarting Court of Appeal in 2014, and became a presiding judge in 2020. Lund took up his current position as a Supreme Court Justice in August 2024.
Photo: Marius Mass Grøtvedt, Oslo tingrett
Photo: Rizwana Yedicam, Høyesterett
She adds that society and, consequently, the cases brought before the courts have become more specialised and complex over time. This has warranted certain measures to ensure that Norwegian courts remain a relevant forum for commercial disputes. Such specialisation also extends to judges acting as mediators, as the mediator’s knowledge of the subject matter assists in facilitating settlement. She asserts that this is an area of significant focus for the Oslo District Court.
Moderate specialisation takes different forms. Judges are recruited from corporate law firms, attend courses to enhance their expertise in their respective fields, and interact with relevant commercial law forums. The courts are also open to feedback from these communities on how they can better facilitate dispute resolution.
The purpose of the courts is not to compete with arbitration, but rather to be an attractive and relevant alternative to arbitration, Justice Lund adds. “We want to ensure that parties coming to the courts can be confident that they will be met by a motivated judge who may also have a background related to the relevant dispute issues”, he says.
He further explains that in complex and large commercial disputes, the case will normally be allocated to a more experienced judge, while also allowing the parties to request expert judges such as auditors or engineers. This allows for the assembly of a competent panel for first-instance proceedings.
However, Judge Barth underscores that the implementation of specialisation does not set aside the principle of random selection of judges.
“It is important to emphasise that this involves only moderate specialisation. Those assigned to a specific type of cases, are still handling all other types of cases. This ensures that the judges maintain a broad and cohesive perspective on the different case areas”, Judge Barth explains. She adds that within each specialised area, there is a significant number of judges, and both the principle of random selection of
judges and the generalist principle continue to apply to them.
Guidelines as a “Best Practice” Framework
Another measure that the courts have implemented are standardised guidelines.
Justice Barth explains that there have been discussions on whether the Disputes Act is achieving its intended purpose. “The Act offers numerous tools, and if these are not being utilised, it may not necessarily indicate that the Act itself requires amendment. Rather, it might suggest a need for more effective implementation.” She explains that guidelines act as a “best practice framework” and are instrumental in coordinating all parties involved in a legal process.
Guidelines for handling large commercial disputes (Nw: “storkravprosess”) were implemented in Oslo District Court in November 2021. Judge Barth led the work on these guidelines, which were developed in collaboration between the courts and the Norwegian Bar Association. The guidelines provide directions for handling civil cases with high amounts in dispute, where there are many or complex issues, or large volumes of documentation. The goal of developing the guidelines was to ensure a better, more tailored, and thus more efficient handling of large commercial disputes, thereby making the courts a relevant forum for resolving such disputes.
The introduction of the guidelines emphasises that in large commercial disputes, an active management of the case from the judge could yield significant benefits in terms of tailoring the cases, conducting efficient negotiation meetings, increasing settlement opportunities, saving litigation costs, and achieving satisfactory legal clarification at an earlier stage in the process.1
“A successful process of a large commercial dispute that effectively employs the tools outlined in the guidelines demands a certain level of collaboration between the court and the involved parties. Everyone involved must be willing to invest more resources early in the case preparation to conserve resources later in the
process”, Judge Barth explains in a press release published by Oslo district court 25 May 2022.”2
The guidelines for handling large commercial disputes further emphasise that it is particularly important to establish the framework of the dispute early on. On this point, the guidelines appear inspired by best practice concerning Procedural Order No. 1 (”PO1”) in arbitration. In addition, to ensure a focused foundation for decision-making, the case must be prepared actively and systematically. 3 To meet these objectives, the guidelines, for example, recommend the use of multiple case management conferences during case preparation. However, the number and content of these case management conferences may, of course, vary depending on the case.4 The guidelines also indicate how such conferences should be conducted.
“In face-to-face meetings, where participants can see each other, there is a stronger sense of obligation to be well-prepared. In contrast, being invited to a telephone meeting with a standard format does not encourage the same level of preparation”, Judge Barth explains.
“We want to ensure that parties coming to the courts can be confident that they will be met by a motivated judge who may also have a background related to the relevant dispute issues”
Supreme
Court Justice Christian Lund
Both Judge Barth and Justice Lund were also part of a working group appointed by the Norwegian Courts Administration in 2023, tasked with proposing a series of new measures to enhance the efficiency of handling civil cases in district courts. Justice Lund was serving as a judge at the Borgarting Court of Appeal at the time. The new guidelines were published in the spring of 2024.5
The guidelines are largely inspired by the Supreme Court’s guidance for counsel on appeals, case preparation, and procedures before the Supreme Court.6
“The court proceedings must be tailored to meet the specific needs in each case ”, says Judge Barth. She adds that while the guidelines contain general principles and issues to consider for the proceedings, they also communicate the room in Norwegian civil procedure rules to tailor the process to each dispute.
While it is not the goal of the new guidelines to make litigation in Norwegian courts more like arbitration, some of the key features of commercial arbitration have served as an inspiration for parts of the guidelines.
According to Judge Barth, the primary goal of the new guidelines is to coordinate all participants to a dispute, including both lawyers and judges, to make it as effective and efficient as possible. This will help keep the litigation costs as low as possible and provides predictability for both counsel, parties and the judge as to the development of the case.
The guidelines are designed to address common questions encountered in a court process. One example is more detailed
guidance as to what the courts want the parties to address in the first submissions. Another is the use of deadlines for various parts of the proceedings already from the beginning of the process. On this point, the guidelines are clearly inspired by PO1 practice in arbitration.
“They provide a concrete and detailed guide, rather than merely repeating the Disputes Act, and aim to ensure that the process is consistent across courts nationwide ”, Justice Lund adds.
They both emphasise that a significant issue has been the courts’ lack of sufficient proactivity. “A recurring issue in large commercial cases is that the case starts to take on a life of its own. Either by way of unsolicited, extensive submissions, or sudden disputes over access to evidence ”, says Judge Barth, adding that “this is especially unfortunate when neither the judge nor the opposing party is expecting it, and when no time has been set aside to handle it.”
In international arbitration, the number and nature/content of the submissions are normally
clarified at an early stage. The same goes for disclosure requests and related disputes. Thus, the parties and the tribunal often provide sufficient time in the timetable to address such parts of the proceedings.
Consequently, the guidelines are designed to ensure that clarity regarding the exact nature of the case is achieved already during the preparatory phase of the dispute, and that progress of the proceedings is set out at an early stage.
The Evolution of Case Management Conferences: From Standardization to Customization
Many would agree that the court’s conduct of the case management conference has evolved for the better in recent years. Previously, these meetings were often brief phone calls between judges and counsel, where the primary focus was simply scheduling the main hearing. This did not align with the purpose of the rule concerning case management.
The courts then took proactive steps to signal to legal representatives that thorough preparation was expected. The courts developed detailed template agendas for case management conferences, addressing a wide range of issues. This approach ensured that nothing was overlooked, although it sometimes meant covering topics that were not relevant to every case.
Judge Barth emphasises that ”The court proceedings must be tailored to meet the specific circumstances of each individual case ” She expresses concern that the courts’ reliance on standardised templates may lead parties to perceive the meeting as generic, potentially signalling that the judge is not adequately prepared. This perception, she argues, can discourage parties from thoroughly preparing for the conference.
The current guideline is, therefore, that the judge, when summoning the parties for the case management conference, should focus the case on its core issues and include only what is relevant to the matter at hand. By clarifying the dispute thoroughly as early as possible, there is also a much greater likelihood of resolving disputes amicably.
VEILEDER FOR BEHANDLING AV
SIVILE TVISTER I TINGRETTENE
Streamlining Written Submissions: The Need for Conciseness and Precision
Justice Lund and Judge Barth both agree that written submissions to the courts often are longer than necessary, and that the number of pleadings exceeds what is required - particularly given the significance of the oral hearing in Norwegian court proceedings. ”I am particularly concerned that both the number and, especially, the length of submissions in a case must be reduced ”, Justice Lund emphasises.
Both Judge Barth and Justice Lund are acutely aware of the strong correlation between the judges’ apparent level of preparedness and the extent to which counsel feel compelled to elaborate on the details of the case and their clients’ claims in written submissions.
“When judges are well-prepared early on in the case management process, the parties are likely to have more confidence that the judges actually understand the content of the written submissions, reducing the perceived need to provide exhaustive details”, Justice Lund adds.
Enhancing Court Efficiency: Reducing Excessive Document Reading
Another method of increasing efficiency, as highlighted by the judges, is to limit the reading aloud of documents during the main hearing. “An excessive and unnecessary amount of information is being read aloud in Norwegian courts ”, says Justice Lund.
On this point, Norwegian court proceedings are quite different from international arbitration proceedings, where the oral arguments are much more limited than in Norwegian courts. Some efficiency could thus be gained by looking to international arbitration.
Judge Barth explains that this issue has been analysed, and that the Court Commission in 2020 proposed changes to the documentation rules.7 However, the Ministry of Justice did not agree and identified that the problem instead lies in the implementation of the existing rules.8
Both the guide for large commercial disputes and the general guide on handling civil cases emphasise this approach.9 The latter explicitly states that reading aloud from documents often occurs more extensively than necessary.10 Typically, it is sufficient to indicate what the document pertains to and to reference the relevant sections. Only when the exact wording is crucial or central to a party’s argument, such as in the interpretation of a contract, should it be read aloud.
Justice Lund explains that the working group has identified that the prevalent practice of extensive reading aloud in court stems partly from the lack of clear expectations set in advance. This underscores the critical importance of conducting a case management conference immediately prior to the main hearing.
”It also provides an opportunity to clarify what the judge has prepared. For example, if the judge has already read the expert report, this can be addressed differently in court.” He further elaborates that when such matters are not clarified, it creates considerable uncer-
tainty, which in turn leads to “over-documentation” in Norwegian court proceedings. To lower the time spent on reading aloud during the hearing and also ensure that judges are sufficiently familiar with the case early on, “reading lists” have become a more common practice, Justice Lund adds. This involves parties identifying the documents and sections of documents that are most crucial to the case, allowing the judge to read them before the main hearing.
Exploring Written Witness Statements
The two judges are also open to the idea of increased use of written witness statements in the lower courts. Large commercial disputes will often hear a significant number of witnesses, many whom appear only to provide context or supporting testimony.
While uncommon in Norwegian litigation, both Judge Barth and Justice Lund agree that written witness statements can be useful in some disputes. “Witnesses that are brought to provide context or more generic testimony, could be presented through a written witness statement ”, Justice Lund says.
“There is time to save at an oral hearing by limiting some of the witness evidence to cross examination“ , Judge Barth adds. But it is double-edged. Justice Lund warns against written statements that appear written or polished by counsel. “When I sense that a statement is too polished, I feel uncertain as to how much I could or should rely on such testimony ”, he states.
Modernising Norwegian Courts: Enhancing Efficiency in Commercial Disputes
Norwegian courts are evolving to more effectively manage large commercial disputes by implementing moderate specialisation, establishing comprehensive guidelines and implementing new technology. These initiatives enhance efficiency, foster collaboration, and reinforce the courts’ contribution to legal development, ensuring they remain a viable and effective alternative to arbitration. There is also a clear desire among counsel to actively apply these guidelines, mirroring the
established use of the Supreme Court’s guidance for counsel.
“Lawyers preparing for the Supreme Court actually read these guidelines to understand the Court´s expectations”, Justice Lund explains. He expresses hope that the new guidelines will become as integral to district and appellate court practices as they are in the Supreme Court, providing clarity on procedural expectations and aiding in the preparation of cases. As these efforts continue, they promise to further solidify the role of Norwegian courts in efficiently resolving complex commercial disputes.
1 Storkravprosess, En veileder utarbeidet i samarbeid med Advokatforeningen, November 2021, p. 3
2 Snakk med oss om storkravprosess! - Oslo tingrett | Norges domstoler (https://www.domstol.no/no/domstoler/tingrett/ oslo-tingrett/nyheter/ny-veileder-for-storkrav/)
3 Storkravprosess, En veileder utarbeidet i samarbeid med Advokatforeningen, November 2021, p. 3
4 Ibid, p. 3 and 5-7
5 Veileder for behandling av sivile tvister i tingrettene, 1 May 2024
6 Ibid, p. 4
7 NOU 2020:11, section 22.5.3.2, p. 282-284
8 Prop.34 L (2022-2023), section 4.2.4
9 Storkravprosess, En veileder utarbeidet i samarbeid med Advokatforeningen, November 2021, p. 8. Veileder for behandling av sivile tvister i tingrettene, 1 May 2024, p. 21
10 Veileder for behandling av sivile tvister i tingrettene, 1 May 2024, section 8.3
About the authors
Atle Skaldebø-Rød Partner
E: atska@bahr.no
M: +47 922 87 727
Atle is admitted to the Supreme Court and has extensive experience across a broad range of complex commercial disputes. His practice includes post-M&A, directors’ liability, shareholder disputes, company law, financial reporting and marine insurance as well as special forms of judicial proceedings, such as enforcement proceedings, preliminary injunctions and securing of evidence.
Fanny Bratfos Managing Associate
E: fabrat@bahr.no
M: +47 906 96 963
Fanny has extensive experience with litigation and civil procedure. She served several years as a deputy judge in the district courts, where she decided and mediated many complex commercial cases. Fanny represents clients in a wide range of commercial disputes, with a particular focus on post-M&A matters, directors’ liability cases, and general contractual disputes.
Andreas Busch Managing Associate
E: anbus@bahr.no
M: +47 469 10 858
Andreas is a commercial litigator with significant experience from both public court proceedings and arbitration. His practice includes corporate litigation and complex contractual disputes e.g. within the energy sector, IT and telecom, as well as directors’ and professional liability cases. Andreas also has extensive experience with special forms of judicial proceedings such as securing of evidence and injunction proceedings.
Johanna Wirth (Hengeler Mueller), Laila Sivonen (Roschier), Hanne Aarsheim (Mannheimer Swartling), Peter Schradieck (Plesner) and Ola Ø. Nisja (Wikborg Rein)
The Complexities and Challenges of Legal Privilege in Arbitration:
Insights from Norwegian Arbitration Day 2025 BAHR pre-conference
For the third consecutive year, BAHR hosted its pre-conference event in connection with Norwegian Arbitration Day. The 2025 pre-conference brought together leading arbitration practitioners to discuss the intricate topic of "Privilege in Arbitration". The pre-conference event highlighted the diverse approaches to legal privilege across jurisdictions and underscored the challenges faced in international arbitration when dealing with privilege issues.
Divergent approaches to privilege across jurisdictions
Legal privilege is a cornerstone of legal practice. Its role is broadly to protect communications between a client and its lawyers to facilitate the provision of legal advice without the fear of its being used against the client. Yet its interpretation and application vary greatly across different jurisdictions, presenting significant challenges particularly in international arbitration. As international arbitration typically
involves parties from diverse legal systems, the differing approaches to privilege — ranging from its scope and recognition to the legal theories underpinning it — can create complexities in arbitral proceedings and pose arbitral tribunals with tough questions regarding the handling of evidence. These challenges are further accentuated by the absence of universal standards and the influence of varying cultural and legal expectations.
A central theme of the BAHR pre-conference was the significant differences in legal privilege between civil law and common law jurisdictions. The panellists and the panel’s moderator hailed from Germany, Finland, Sweden, Norway, and Denmark. These civil law jurisdictions have varying degrees of recognition and application of legal privilege in arbitration.
For example, in contrast to many common law jurisdictions, in Norway-seated arbitrations, parties are under no obligation to produce documents they do not wish to disclose. When a party refuses to produce certain documents, the typical remedy available to the requesting party is the drawing of adverse inferences against the non-disclosing party. As the panel explained, the same is true for Denmark. As noted by one of the panellists, in highlighting the divergence between common law and civil law jurisdictions like Denmark and Norway, the extensiveness of discovery and disclosure obligations in common law jurisdictions necessitates stronger privilege protections, whereas the same is not true for civil law jurisdictions.
Across the board over the past 15 years, there has been a shift towards adopting international document production procedures, with an increased focus on attorney-client privilege. Despite these developments, the lack of protections akin to common law rules surrounding privilege raises concerns in international arbitration; a party from a civil law jurisdiction that does not recognise common law privilege rules would seemingly be at a disadvantage in an arbitration against a common law counterparty that has broader bases to avoid document production based on privilege. Practical challenges also arise when documents produced in jurisdictions without privilege may be deemed a waiver under, for example, US privilege rules in concurrent proceedings.
The timing of addressing privilege issues
A critical point of discussion was determining when privilege issues should be addressed during arbitration proceedings. From the tribunal’s perspective, it is often unclear at the case management conference whether document production will involve privilege
concerns. Addressing privilege issues early and without any indication that the topic will eventually prove relevant can be complicated, potentially unnecessary, and may drive up time and costs. A party might also be loath to initiate a discussion about how to address privilege issues, as this would immediately generate speculation or suspicions as to that party’s intentions regarding the handling of evidentiary issues.
There was consensus that, unless there is a specific need, it might be prudent to avoid raising privilege issues at the initial stages. Addressing the issue when a concrete disagreement arises, rather than before, could be a practical solution. This approach prevents derailing the proceedings and keeps the focus on the main arbitral issues.
Determining the applicable governing law for privilege
The conference delved into the complexities of determining the applicable law when parties have not agreed on which laws govern privilege issues in the arbitration agreement or procedural order. Four different approaches were identified:
• Closest connection: Applying the law of the jurisdiction with the closest connection to the document or the parties.
• Location-based: Adopting the law of the jurisdiction in which the document is held or where it is to be produced.
• Most-favoured-nation: Adopting the privilege rules most favourable to protecting the information. However, this might exclude evidence that a party had no expectation would be protected.
• Least-favoured-nation: Applying the least protective privilege standards, which risks forcing counsel to breach their own privilege rules or clients to waive the privilege. Counsel will rarely breach their own privilege obligations and clients will rarely waive privilege, so this approach provides little as a practical solution.
A second, related question is to what extent
the choice of law should be applied on a document-by-document basis, or whether the better approach is to choose one law to apply to all privilege issues. However, defining the applicable law remains complex and may consume considerable time, especially when done on a document-by-document basis. The exercise also does not necessarily preserve legitimate interests in the protection of confidentiality or privilege obligations under domestic rules. Further, as one participant noted, this approach might not be effective and could result in each document being subject to a different regime, consuming valuable resources and leading to confusion.
The role of the IBA Evidence Rules
The International Bar Association (“IBA”) Rules on the Taking of Evidence in International Arbitration (“IBA Evidence Rules”) reflect international best practices in the handling of evidentiary issues in international arbitration. They provide a framework for, among other things, addressing privilege issues. Article 9.2(b) of the IBA Evidence Rules provides that a tribunal may exclude from evidence or production “any Document, statement, oral testimony or inspection, in whole or in part, for any of the following reasons: ... (b) legal impediment or privilege under the legal or ethical rules determined by the Arbitral Tribunal to be applicable ”.
Article 9.4 of the IBA Evidence Rules provides a framework for determining the rules applicable to privilege issues. In particular, Article 9.4(c) provides that the tribunal may take into account “the expectations of the Parties and their advisors at the time of the legal impediment or privilege is said to have arisen”. Taken together with the tribunal’s duty to treat the parties fairly and equally, the current approach under the IBA Evidence Rules suggests a combination of the closest connection and the most-favoured-nation approaches.
However, the panel expressed that the current version of the IBA Evidence Rules provides limited guidance on this point. The panel expressed a need for more streamlined appro-
aches to ensure fairness and efficiency in arbitration proceedings. It was noted that relying solely on party expectations may not suffice, and clearer guidelines are necessary. As we learned during the Q&A session through audience participation in the discussion, the IBA is working on guidelines to address attorney-client privilege, work product privilege1/ litigation privilege, and choice of law concerning privilege issues. A timeframe for when the IBA will issue its updated guidelines is unknown.
Challenges with in-house counsel communications
Another area of concern is the privilege associated with communications involving in-house counsel. Different jurisdictions come to different conclusions as to whether communications with and advice rendered by in-house counsel are covered by privilege. In addition, disputes often arise when in-house counsel communicate external counsel’s advice and provide further advice based on that information. The question is whether and to what extent such communications are privileged. In jurisdictions like Denmark, in-house counsel
are not covered by privilege because they are deemed part of the business organisation, not a separate legal advisory body. However, in some organisations, in-house counsel function similarly to external counsel to other parts of the organisation. This may create ambiguity regarding the application of privilege to their communications.
Seeking practical solutions
The conference highlighted the importance of adopting practical approaches to privilege issues in arbitration. Lawyers have a responsibility to challenge clients on whether privilege genuinely applies to certain documents. The scrutiny applied in common law jurisdictions assumes a high degree of oversight from the courts, and similar diligence should be applied in arbitration.
Using privilege logs2 or appointing a neutral reviewer to assess documents where privilege is invoked are potential methods to manage disputes. However, building trust between parties and adopting more consistent legal approaches may be more effective in addressing privilege challenges.
It was emphasised that privilege should not become a distraction from the main issues in arbitration. A more streamlined approach, possibly through improved guidelines and a focus on fairness, could save time and resources.
Conclusion
Privilege in arbitration remains a complex and nuanced issue, particularly in international proceedings involving parties from jurisdictions with differing legal traditions.
The Norwegian Arbitration Day 2025 BAHR pre-conference emphasised the need for streamlined approaches and practical solutions to navigate these challenges effectively.
Arbitral tribunals and practitioners must carefully consider when and how to address privilege issues, balancing the need for efficiency with the protection of fundamental legal principles. Ongoing efforts by organisations like the IBA to develop clearer guidelines are steps in the right direction.
1 Work product privilege is a US legal doctrine that protects from discovery by the opposing party documents and tangible things that are prepared in anticipation of litigation or for trial. It is similar to the doctrine of litigation privilege under English law..
2 Privilege logs are a record of every withheld document in respect of which a party claims privilege. The disclosing party provides the privilege log to the other party, with an explanation of why certain documents are deemed privileged and why they are being withheld.
About the authors
Simen Skjold Søgaard Partner
E: sss@bahr.no
M: +47 900 21 287
Simen is admitted to the Supreme Court and rejoined BAHR as partner after six years at the Office of the Attorney General (Civil Affairs) in April 2022. Simen represents clients in all forms of commercial disputes with a particular focus on tax and VAT litigation and matters involving public authorities.
Daniel Sipos Partner
E: dasip@bahr.no
M: +47 928 55 425
Daniel is an experienced litigator, working primarily with finance related litigation. His experience includes assisting banks and bondholders with resolving disputes, recovering funds, and protecting their legal positions in cases of default or insolvency. He also has experience assisting borrowers and issuers in disputes with their lenders.
Daniel Steel Managing Associate
E: daste@bahr.no
M: +47 930 487 34
Daniel’s practice focuses on international arbitration, cross-border litigation, and investigations and compliance. Daniel has over ten years of experience advising clients in arbitration matters under the ICC, LCIA, AAA/ ICDR, SIAC, HKIAC, CIETAC, and UNCITRAL rules. His experience in contentious matters comprises a wide range of industries and areas.
Editorial team
Atle Skaldebø-Rød Partner
E: atska@bahr.no
M: +47 922 87 727
Fanny Bratfos Managing Associate
E: fabrat@bahr.no
M: +47 906 96 963
Simen Skjold Søgaard Partner
E: sss@bahr.no
M: +47 900 21 287
Daniel Sipos Partner
E: dasip@bahr.no
M: +47 928 55 425
Adele Matheson Mestad joins BAHR’s Dispute Resolution team
Adele Matheson Mestad, currently the director of the Norwegian Human Rights Institution (NIM), will join BAHR as a partner and become head of our dispute resolution team. Adele will assume her new role after completing her term as director of NIM, where she has served as director and deputy director for the past nine years. Previously, Adele worked ten years at the Office of the Attorney General. She was admitted to the Supreme Court in 2013 and is one of the appointed mediators at the National Mediator of Norway.
In addition to a law degree from the University of Oslo, Adele holds an LLM in International Legal Studies from New York University, leadership training from the Norwegian School of Economics (NHH), and has completed the executive course at the Norwegian Defence University College. Adele is also a member of the European Commission for Democracy through Law (the Venice Commission) and was part of the government-appointed Commission for Freedom of Expression.
We are very excited to welcome Adele to our team!
Photo: Hanna Johre/NIM
DISCLAIMER
This publication contains information in summary form and is therefore intended for general guidance only. It is not intended to be relied upon as legal advice or be a substitute for detailed research or the exercise of professional judgement. Please refer to your advisors for specific advice.
BAHR will not accept any responsibility for loss occasioned to any person acting or refraining from action as a result of any material in this publication.
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