Dispute
Resolution Insight 02/25
Dear friends and colleagues,
It’s a pleasure to welcome you to a new edition of BAHR Dispute Resolution Insight. This is the eleventh issue of the publication – and my first as the new Head of Dispute Resolution at BAHR. We’re proud to continue the tradition of sharing updates, perspectives, and reflections on developments shaping our field.
In this edition, we present three articles contributed by three different teams across BAHR.
The first article examines the growing judicial scrutiny of administrative procedures, especially in large-scale energy projects – from onshore wind farms to petroleum developments. Our colleagues in the Environment and Energy team explore how both Norwegian and international courts are placing greater emphasis on procedural safeguards and the quality of impact assessments during judicial review.
Dispute resolution is not just about handling disputes once they arise – an equally
important part of our work is helping clients avoid them. The second article offers practical guidance on managing disputes that may follow the termination of employment relationships. It outlines the process under the Norwegian Working Environment Act – from negotiation and mediation to potential litigation – and highlights best practices that can help employers reduce risk and conflict.
The third article explores the growing role of climate litigation, a topic also discussed at our recent Green Forum event. It examines how both public authorities and private entities are increasingly exposed to legal action related to their climate impact, often based on environmental obligations and human rights considerations.
As always, we hope you find the publication useful and relevant.
With that, we wish everyone a pleasant and relaxing summer.
Adele Matheson Mestad PARTNER / HEAD OF DISPUTE RESOLUTION
E: amm@bahr.no M: +47 952 45 244
Increased Judicial Review of Administrative Procedure in Public Administration Cases
Major energy projects – from onshore wind farms to petroleum developments – are increasingly subject to judicial scrutiny. This heightened focus on procedural compliance aims to ensure that affected interests are heard, and that the authorities’ fact-finding process is sufficiently robust. At the same time, questions arise about whether stricter procedural review may prompt unnecessary re-evaluation of final decisions. This article explores the balancing act between safeguarding due process and maintaining the efficiency of licence awards.
Introduction
Construction of energy facilities such as onshore wind farms and petroleum installations are subject to extensive licencing procedures to ensure that all affected interests are considered and heard prior to a licence decision. Nevertheless, licence decisions awarding the right to construct large-scale energy projects are in many cases considered
controversial and end up being challenged through administrative appeals and, ultimately, court actions.
Under Norwegian law, the courts, as a starting point, do not scrutinise the discretion exercised by competent administrative authorities in determining whether a licence should be granted pursuant to, for example, the Energy Act or the Petroleum Act. On the other hand,
the courts will consider whether the licence decisions are lawful and adopted in accordance with rules on administrative procedure.
The distinction between administrative discretion and checks on administrative procedure may be clear at the outset. However, there is arguably a tendency to require more extensive licence procedures prior to licence award while compliance with such procedures is more often challenged before the courts.
The ability to judicially review the process behind major energy projects is an important safeguard of due process. The possibility of reviewing the procedure ensures, among other things, that affected interests are heard and that the administration strives to have the best possible basis for a decision when one is made.
However, from a legal standpoint, there is an important distinction between the procedure underlying a decision and the final decision. This article examines whether a stricter judicial review of procedures might lead to re-evaluating decisions more often than necessary, exceeding what is justified by proper due process safeguards.
Environmental impact assessments and the overall decision basis
Pursuant to the Public Administration Act, relevant authorities are required to ensure that the factual basis for a decision is sufficiently investigated prior to making a license decision. Whether such procedural rules have been followed and whether any procedural error may have influenced the content of the decision can be reviewed by the courts.
In major energy development projects, developers are required to carry out an environmental impact assessment (EIA), ensuring that environmental and social factors are properly considered during both the planning and implementation stages of a project. The EIA proceeds in such a way that the authorities first set out what the assessment should cover (an “assessment program”), which the project owner then follows. The EIA then forms part of the overall decision-making basis, together with the application and other materials, for the authorities’ decision. Environmental impact
assessments are an important tool for ensuring that a case is as fully elucidated as possible, thus fulfilling the public administration’s duty of investigation under the Public Administration Act.
A type of lawsuit that has repeatedly come before the courts in recent years is where a party claims that the EIA underlying a licence is insufficient, asserting that this should result in invalidating the licence. One well-known example is the 2021 Fosen case, where the reindeer districts argued before the lower courts that the knowledge basis for a licence decision was inadequate, but without succeeding on this basis. While this question was not considered by the Supreme Court, the Supreme Court did however consider the licence invalid due to breach of Article 27 of the International Covenant on Civil and Political Rights, which raises questions other than those discussed in this article.
Whether the administrative authorities have a sufficient knowledge basis when making a licence decision must be determined based on all relevant facts available to the administration, rather than solely on whether there is a shortcoming in the EIA. A shortcoming in the EIA, therefore, does not automatically imply that there is a procedural error. This has been the applicable law ever since the Alta ruling from 1982, where the Supreme Court, sitting in plenary, pointed out that the licencing authority’s decision on the application “is the result of the interplay between the application, hearing statements, and expert investigations”.
An example of such a dispute in which BAHR has been involved is the appraisal case between Øyfjellet Wind AS and a reindeer herding district concerning the development of the Øyfjellet Wind Farm - Norway’s largest wind farm in terms of installed capacity. BAHR represents Øyfjellet Wind AS. One of the arguments put forward by the reindeer herding district in this case was that the EIA was inadequate. However, Helgeland District Court ruled that there was no administrative error and considered the expropriation permit and energy licence valid. The case is currently under appeal.
Generally speaking, it will always be possible to extend the scope of impact assessment programs to new issues and to require even more thorough and broader assessments. It may be tempting to push for a larger scope, hoping to produce an even more reliable decision-making basis. However, more comprehensive and broader impact assessment programs could also increase the risk that it might be disproportionally burdensome to carry out the assessment and increase the risk that the licence decision is legally challenged based on arguments that not all requirements are met. In addition, making an EIA too extensive can imply re-investigating topics that the authorities already understand well. For instance, if a similar project in the same municipality has previously studied certain impacts, it should not be necessary to analyse those aspects all over again in conjunction with another project.
The threshold for procedural errors –invalidity
As noted above, it is the administration’s overall basis for the decision that forms the frame of reference when determining whether a procedural error exists. This means that even in cases where there may be a deficiency in the EIA, this part of the EIA may be covered by another knowledge base with the result that there is no procedural error.
If it can be demonstrated that there is a procedural error, the question is whether the decision is nevertheless valid according to the Public Administrative Act or should be invalidated on the basis of non-statutory law principles. Pursuant to established case law, a key test is whether there is “not an entirely remote possibility” that the error influenced the decision. Several factors guide this assessment, including the nature of the error and whether it resulted in an inadequate or flawed decision-making basis.
Norwegian rules on EIAs are based on EU/EEA rules such as the EU’s Environmental Impact Assessment Directive. In a well-known case now pending before Borgarting Court of Appeal, environmental organisations have claimed that decisions approving plans for
development of three petroleum fields are invalid. One of the questions in the case is whether the EU’s Environmental Impact Assessment Directive requires the assessment of scope 3 emissions, i.e., greenhouse gas emissions from the final use of the petroleum to be produced by the fields. On 21 May 2025, the EFTA Court issued an advisory opinion in the case, holding that the Directive requires the assessment of such scope 3 emissions. Furthermore, the court made statements regarding the consequences of failing to carry out such an assessment.
According to the ruling, in the event of failure to carry out an assessment of scope 3 emissions pursuant to the Directive, the state is required to alleviate the unlawful consequences of that failure, for example, by revoking or suspending the development consent. However, the Court noted that EEA law does not preclude rectification through the conducting of such an assessment while the project is underway or even after it has been completed, subject to certain conditions being fulfilled. Allowing errors to be corrected rather than requiring a completely new EIA that must revisit already assessed topics is, in our view, a sensible approach.
Conclusion
The fact that administrative decisions are subject to judicial review is an important legal safeguard that may also contribute to ensuring that affected interests are heard and that the authorities rely on solid evidence before rendering decisions. At the same time, a development in the direction of more intense scrutiny of procedural elements may introduce uncertainty and costly delays, especially when project development has already commenced. For investors and project developers, a prolonged legal battle over claims that procedural errors have been made can, in reality, be projected as a rematch on the core merits of the licence decision entailing economic risk. Consequently, a goal should be to find a balanced approach where the right to challenge administrative procedure is preserved while seeking to avoid repeated attempts to overturn final licence decisions already made.
About the authors
Henrik Bjørnebye PARTNER
E: heb@bahr.no
M: +47 906 40 229
Henrik is a member of BAHR’s practice group for Environment & Energy. He advises energy sector clients, specializing in energy and climate law, electricity market law, EU and EEA law and other regulatory matters relating to the energy sector. He has previously held a position as Professor at the Faculty of Law, University of Oslo, where he was head of the Department of Energy and Resources Law, Scandinavian Institute of Maritime Law. Henrik has more than 20 years’ experience relating to the energy sector, has published extensively and is a regular speaker at national and international conferences.
Jon Christian Thaulow
PARTNER
E: jct@bahr.no
M: +47 905 29 550
Jon Christian is the head of BAHR’s practice group for Environment & Energy. He advises energy sector clients, providing expertise in relation to electricity markets, renewable energy, infrastructure, as well as oil and gas. He has extensive experience with company law and corporate governance, M&A, regulatory issues relating to the energy sector, contentious matters and anti-corruption issues. He advises several leading energy groups and investors in Norway and internationally. Recent experiences include advising Aker and Aker BP on the acquisition of Lundin Energy Norway AS, and advising Freyr Battery in connection with transactions, corporate governance and project development related matters for its battery business. He has deep experience with a wide range of energy transition projects, such as hydrogen, district heating, carbon capture, wind power, solar power and e-fuels.
Anders Stray Bugge ASSOCIATE
E: andbu@bahr.no
M: +47 468 37 540
Anders is a member of BAHR’s practice group for Environment & Energy. He primarily advises on regulatory and company law related matters within the energy sector. Prior to joining BAHR, Anders held the position as research assistant at the Department of Private Law at the University of Oslo, where he wrote his master’s thesis on pre-emptive right to shares in the event of mergers and de-mergers of companies.
Handling Disputes Arising from Termination of Employment Relationships
Employers may experience situations that necessitate the termination of an employment relationship. Sometimes this necessity arises from rationalisation measures that demand workforce adjustments, while in other cases there might be specific circumstances such as inadequate job performance or cooperation problems which lead to termination of the employment relationship.
When an employer initiates a termination process, they must consider the possibility that the employee may challenge the lawfulness of the termination. In this article, we will provide an overview of the procedural regulations under Norwegian legislation, applicable at the various stages of a dispute arising from termination of an employment relationship.
1. Introduction: Legal Framework governing employer-employee disputes
The legal framework is set out in the Norwegian Working Environment Act (“WEA”) (Nw.: arbeidsmiljøloven) and the Norwegian Dispute Act (Nw.: tvisteloven). While the Dispute Act governs the general procedural rules that apply to all civil disputes, the WEA governs employment protection rights (Nw.: stillingsvernsregler) and outlines specific procedural rules for disputes arising from the termination of employment relationships. In order for an employer to terminate an employment relationship, an ”objective cause” for the termination must be proved, see WEA section 15-7. The more detailed content of this requirement will vary, also depending on whether the termination is due to circumstances relating to the company or the employee. Regardless, the requirement of an “objective cause” implies that the employer must be able to demonstrate a reason that makes it necessary to terminate the employment relationship, and that following an overall assessment of both parties’ needs, such termination is considered fair and reasonable.
The employer bears the burden of proving that a termination meets the requirements set out in the WEA section 15-7. However, the employee may disagree with the grounds for termination or perceive the termination as a disproportionate reaction from the employer. In other cases, the employee might claim that the termination is unlawful because the employer did not follow the procedural rules in the WEA Chapter 15, including the requirement for an individual consultation meeting, see WEA section 15-1.
However, a chief executive may waive the employment protection rights that apply in the event of termination in exchange for a severance payment, if previously agreed upon in writing, see WEA section 15-16 (2). Such waiver clauses are commonly included in chief executive employment contracts, typically specifying both the terms and the amount of the severance payment.
Furthermore, the employer may enter into a written agreement with the chief executive to
have disputes about the termination of the employment relationship settled by arbitration, see WEA section 15-16 (1). Such an arbitration agreement may only be entered into with the chief executive, meaning it is not available for other employees.
Unlike other countries, Norway does not have a dedicated employment tribunal responsible for handling disputes between the parties. Such disputes are handled in the ordinary court system, normally with the place of work as the legal venue. The dispute starts in the District Court (Nw.: tingrett) and may be appealed to the Court of Appeal (Nw.: lagmannsrett) and to the Supreme Court (Nw.: Høyesterett).
For many employers, the details of such legal proceedings are unfamiliar. However, it is crucial for employers to fully understand their obligations toward employees when a dispute arises from a termination of employment, as well as the various procedural steps involved, particularly since these steps can lead to important financial obligations for the business.
In addition to the ordinary courts, there is also a specialised Norwegian court known as the Labour Court (Nw.: Arbeidsretten). This court, however, primarily handles disputes related to collective agreements as well as questions regarding unlawful strikes. Ordinary disputes on termination of employment fall outside the Labour Court’s jurisdiction.
2. Disputes arising from termination of employment relationships
Negotiations, mediation and the right to remain in position throughout legal proceedings
If the employee claims that a termination is not based on an objective cause, see WEA section 15-7 (1), the employee has the right to demand negotiations with the employer, see WEA section 17-3 (1). During the negotiations, the employee is entitled to remain in the position, which generally means that the employee may not be placed on garden leave.
Negotiations must be demanded within two weeks from the date of the termination, see WEA section 17-3 (2). It is the employer’s duty
to ensure that a negotiation meeting is held as early as possible, and at the latest within two weeks of receiving the request from the employee. However, the right to demand negotiations is not exclusive to the employee. The WEA section 17-3 (4) also grants the employer the right to demand negotiations before the employee initiates legal proceedings.
Negotiations under the WEA section 17-3 are conducted only if demanded by one of the parties, and the WEA does not stipulate any consequences if the parties oppose negotiations. However, by granting both parties the right to demand negotiations, the WEA arranges for an opportunity to resolve the dispute and avoid a full legal procedure.
If negotiations under the WEA section 17-3 fail, the employee may file a writ of summons with the court. In disputes concerning the
lawfulness of a termination, see WEA section 15-7, special time limits for instituting legal proceedings apply, see WEA section 17-4. These time limits vary based on the nature of the dispute. If the dispute pertains to the lawfulness of the termination of the employment relationship, the time limit for instituting legal proceedings is eight weeks. However, if the dispute only concerns the employee’s compensation claim against the employer for damage and non-pecuniary damage related to the termination, the employee must initiate legal proceedings within six months.
The time limits for instituting legal proceedings runs from the time the negotiations between the parties, see WEA section 17-3, have concluded. If negotiations have not occurred, the time limit for instituting legal proceedings runs from the date of the termination.
If the employee does not initiate legal proceedings within the time limit period, the employee cannot pursue claims against the employer, and the termination of employment remains in effect.
However, if the employee files legal proceedings within the time limit period, the dispute will proceed to the courts. Consequently, the employee is entitled to remain in his or her position while the case is heard in court, unless the employer petitions the court for a decision for the employee to vacate the position while the case is in progress, see WEA section 15-11 (2). This right to remain in their position has, in this way, become one of the employees’ most important bargaining chips as the cost for the employer may be substantial.
Further, all civil cases shall be subject to judicial mediation before a court hearing is held, see the Dispute Act section 8-3. Judicial mediation is a service offered by the lower courts to assist the parties in resolving their conflict themselves, with the guidance of a neutral and objective mediator.
Judicial mediation, as set out in the Dispute Act section 8-3, differs from negotiations under the WEA section 17-3. While negotiations under the WEA take place directly between the parties, judicial mediation is a structured process carried out by the courts and conducted with a judge acting as the mediator. If the judicial mediation successfully resolves the dispute, the parties may formalise their agreement as a public court settlement, thereby bringing the dispute to a final conclusion between them. This may also be done by signing a settlement agreement which remains confidential to third parties.
Based on our experience, judicial mediation is often effective in resolving disputes arising from termination of employment relationships. Mediation offers the opportunity for the parties to control the outcome of the dispute and is a less expensive process, compared to the costs the parties might incur if the dispute proceeds to a full court hearing.
However, for judicial mediation to achieve a satisfactory outcome, both parties must be willing to “give and take” during the mediation. If either party is unwilling to adjust their own negotiation stance, it is unlikely that judicial mediation successfully will resolve the dispute.
Main hearing in court
If the parties are unable to reach an agreement, a main court hearing will be scheduled. Disputes concerning termination of employment are prioritised at the courts list of hearings, and shall be expedited as much as possible, see WEA section 17-1 (4). The rationale for this prioritisation is that disputes over employment termination have significant implications for the employee’s welfare, while the employer also has a strong interest in achieving resolution due to broader operational concerns and the need for predictability. This implies that the parties can expect the dispute to be scheduled for a court hearing relatively quickly, quite often within less than six months from the date the writ of summons was received by the court.
The appointment of lay judges in disputes concerning termination of employment relationships
Specific provisions apply with respect to the composition of the court. In addition to legally qualified judge(s), the court is also comprised of two appointed lay judges with special insight in employment related matters, see WEA sections 17-6 and 17-7.
To ensure that the appointment of lay judges reflects the interests of both parties, each party proposes one lay judge for appointment, see WEA section 17-7. Only lay judges from certain approved special panels of lay judges may be appointed to serve during the court hearing, see WEA section 17-7 (2).
These lay judges are appointed to the panel on the recommendation of the main employers’ and employees’ organisations, typically based on an assessment of their special insight into employment related matters. In practice, these appointments are done based on nominations
from Norway’s largest employee and employers’ organisations. This approach is intended to enhance the parties’ confidence in the courts as a dispute resolution body.
It has become relatively common practice for both sides to recommend several lay judges for appointment in a prioritised order. This approach is both practical and timesaving in the event that the first choice is not appointed. The appointment of lay judges by the parties themselves in disputes concerning the termination of employment relationships is a distinctive feature of Norwegian procedural legislation. However, some smaller organisations have argued that, while the largest workers’ and employers’ organisations can appoint “their” lay judge to the panels, see WEA section 17-6, the members of smaller organisations cannot, which comes at a huge disadvantage to their members. Their main concern is that the system of appointment implies that the lay judge is expected to vote in favour of the party that appointed them.
This concern led certain organisations, in 2021, to request the European Committee of Social Rights to evaluate the Norwegian system of lay judges in employment disputes in light of the Revised European Social Charter Article 24. The organisations claimed that the system for selecting lay judges in Norway undermines the independence of the Norwegian courts, particularly with regard to the requirement of being an “impartial body”. The European Committee of Social Rights reviewed the matter, but could not find any violation of Article 24 of the Charter, outlining that:
"As already noted, specific lay judges are selected by each party to the proceedings from the lists of lay judges, and usually, or even invariably, each party selects the lay judges representing their side of the complaint (in other words, and in practice, their side of industry).
The Committee therefore considers that the fact that lay judges are or can be nominated by the
largest workers’ and employers’ organizations and selected to sit on the courts does not per se affect the impartiality of those judges. Nor has it been demonstrated by the complainant organizations that lay judges generally have acted with bias."2
Despite criticism from certain organisations, many employers nonetheless find that lay judges appointed by the parties contribute to substantively correct decisions in disputes concerning termination of employment relationships.
3. Which decisions are within the court’s jurisdiction?
Decision to vacate the position
While the dispute over the termination of the employment relationship is ongoing, the employee is, as a general rule, entitled to remain in their position, see WEA section 15-11 (1).
Nonetheless, there may be good reasons for the employer, considering operational needs, the working environment, and the welfare of other employees, to prefer the employee not remaining in the position during the dispute. In such cases, the WEA section 15-11 (2) stipulates that if the employer demands, the court must decide whether the employee should vacate the position during the proceedings if the court finds it unreasonable for the employment relationship to be maintained while the case is in progress.
If such a demand is made by the employer, the court will assess the likely outcome of the dispute concerning the question of whether there was an objective cause, see WEA section 15-7, for the termination. In cases where termination is due to circumstances related to the employee, the employer’s demand for the employee to vacate the position will often be accepted by the court, if the termination is based on serious misconduct by the employee. However, it is the employer’s responsibility to
2. Norwegian Association of Small and Medium Enterprises (SMB Norge) v. Norway, Complaint No. 198/2021 and Fellesforbundet for Sjøfolk (FFFS) v. Norway, Complaint No. 209/2022
provide evidence for the court that the termination was based on an objective cause.
Consequences in the event of an unlawful termination of employment
If the court finds that the termination of the employment is unlawful, see WEA section 15-7, the employee is entitled to resume their position, see WEA section 15-12. In special cases, if demanded by the employer, the court may decide that the employment shall be terminated if the court finds it clearly unreasonable that employment should continue, see WEA section 15-12 (1). This provision is, however, a restricted exception, and it requires good reasons for the employer to succeed with such a demand.
Additionally, the employee may also claim compensation from the employer for lost wages as well as non-economic damages, see WEA section 17-1 (2) and 15-12. However, the amounts of such compensation are often modest.
While employment legislation in other jurisdictions often grants a contractual or statutory right to severance payment if an employment relationship is unlawfully terminated, Norwegian legislation differs from this. Under Norwegian legislation, the primary consequence of an unlawful termination is that the employee has the right to keep the position or to be reinstated if the court previously issued a decision to vacate, see WEA section 15-11.
4. Summary and BAHR’s point of view
The Norwegian labour model implies that the WEA is a rights-based statute, which inherently creates a potential for disputes within the framework of the law itself. Although many of the risks associated with entering into an employment relationship can be mitigated through provisions in the employment agreement between the parties, there is
ultimately a limit to how much an employer can safeguard against disputes when an employment relationship is terminated.
Unlike many other countries, under Norwegian legislation only the company’s chief executive may waive employment protection rights in exchange for severance payment, see WEA section 15-16. This means that if a regular employee is terminated, that employee can initiate legal proceedings against the employer if they believe the termination is unlawful, regardless of any terms in their employment agreement. As a general rule, this means the employee may not be placed on garden leave, and that an employee who prevails in court is entitled to continue in their position. This differs from the practice in many other jurisdictions, where unlawful termination or redundancy “only” leads to severance payments.
The threshold for termination of employment under Norwegian legislation is relatively high, and in most cases for the court, the question of whether the employer had an “objective cause” for termination of the employee, see WEA section 15-7, will rely on the evidence that is presented to the court, including documentation of any relevant follow-up measures attempted prior to making the decision to terminate. The most important consideration the employer should keep in mind when considering termination of an employee is therefore to ensure that the grounds for the termination of the employee and any follow-up are well founded and well documented in writing.
However, many disputes arising from termination of employment are, in our experience, often possible to solve through either negotiations or judicial mediation, which can be beneficial for both parties. Negotiations and mediation provide the parties with greater opportunities to reach mutually acceptable compromises.
About the authors
Margrethe Meder PARTNER
E: mme@bahr.no
M: +47 917 31 919
Margrethe joined BAHR as a partner in 2022, coming from her position as Head of Legal at Norway’s largest employers’ organization, the Confederation of Norwegian Enterprise (NHO). She has extensive experience in labour law, particularly in litigation related to employment matters, and has litigated many dozens of cases before Norwegian courts, encompassing a wide range of labour law questions in all sectors, such as redundancies, hiring of labour, incentive plans, transfer of undertakings, working time, and matters related to collective bargaining agreements. She has also litigated numerous high-profile cases before the Supreme Court since being admitted in 2017.
Tarjei Thorkildsen PARTNER
M: tth@bahr.no
E: +47 909 22 646
Tarjei Thorkildsen is head of BAHR’s employment department. He has worked in the field of employment law and dispute resolution for many years, acting for companies and employer’s associations. He works in all areas of domestic and crossborder employment law, including pension law issues, transfer of undertakings and restructuring, incentive schemes and collective employment aspects in relation to unions and employee elected representatives.
Tor Olav Carlsen PARTNER
M: toc@bahr.no
E: +47 970 86 242
Tor Olav re-joined BAHR’s Employment group in June 2021, as Deputy Head of the group. He came from the position as Head of Legal in the Employers’ Association Spekter (Nw. Arbeidsgiverforeningen Spekter), where he assisted both private and publicly owned companies mainly within the cultural-, transport- (bus, rail and air), health- and energy sector. Tor Olav has extensive experience from both individual and collective employment law. He has also published several professional articles within the employment area and is used as lecturer.
An Update on The Rising Momentum of Climate Litigation: Learnings from Green Forum 2025
At the Green Forum, held at BAHR’s offices on 13 May 2025, new BAHR head of litigation Adele Matheson Mestad spoke about the genesis of the new wave of climate change and environmental litigation, followed by a panel discussion comprised of esteemed guests within the space on implications going forward. The presentation and discussion illuminated the positive developments in this area for climate change and human rights protection but simultaneously highlighted the myriad challenges remaining and the limits of judicial intervention.
Brainstorming legal solutions to the climate crisis
Green Forum (or Grønt Forum in its original Norwegian) was established by law firms BAHR and CMS Kluge in Norway in 2019. The purpose was to create a platform where legal practitioners, policymakers, and other stakeholders can discuss the evolving landscape of climate change litigation, with particular attention to how human rights obligations (including those under the
European Convention on Human Rights (“ECHR”) and within the European Economic Area (“EEA”) framework) may shape both government and corporate climate responsibilities. In the autumn of 2022, Norwegian law firms Wiersholm and Glittertind threw their support behind the initiative.
The event on 13 May 2025 began with a presentation by Ms. Mestad on the genesis of climate change litigation and recent developments. Following that, Jon Wessel-Aas (Glittertind) and Amund Noss (CMS Kluge), in a panel discussion moderated by BAHR’s Henrik Bjørnebye, provided their reactions to updates discussed in Ms. Mestad’s presentation.
The gathering on 13 May 2025 underscored the importance of uniting diverse legal expertise on climate and environmental legislation and litigation to exchange ideas, identify challenges, and explore potential solutions.
Last year, we explored the various waves of climate change litigation.1 Rather than repeat the entire history here, this article will focus on notable developments since then alongside the remarks of Ms. Mestad and the panellists at this year’s Green Forum.
The ECHR as a driver of progress
One of the key messages from the Green Forum was the importance of the decisions from European Court of Human Rights (“ECtHR”).
Building on hundreds of previous rulings requiring states to safeguard citizens from pollution and environmental harm, the Court issued three landmark judgments on 9 April 2024, concluding that inadequate state measures on climate change can constitute a breach of human rights. 2 These judgments mirror decisions by apex national courts in countries such as the Netherlands and Germany.
Key insights from these decisions include:
• Positive obligations: The Court recognised that climate change risks can engage ECHR Article 8, signalling a state’s responsibility to take measures that effectively address climate change as a threat to private life and well-being.
• Effective administrative and legal framework: States should enact robust regulatory structures and policies designed to enable immediate, efficient emissionmitigation strategies.
• Meaningful targets and monitoring: Under ECHR Articles 2 and 8, governments are encouraged to adopt concrete, time-bound emission goals as part of a broader plan to reduce climate-related harm.
• Shared responsibility: The Court discouraged defences that minimise a single state’s contribution to global totals, instead stressing that each state remains accountable for its own emissions, rejecting the “drop in the ocean” argument put forward by many states.
• Protection of vulnerable groups: Older individuals, children, and communities in high-risk locations warrant special protection given their heightened vulnerability to climate impacts.
• Respect for future generations: Klimaseniorinnen emphasised that insufficient action today places a growing burden on future generations, underlining the need for forward-looking policies. 3
• Recognition of past shortcomings: The Court references long-standing awareness of climate science, reinforcing that states’ historical inaction underscores the urgency of effective measures now.
1 BDRI 02/24: Rising Tide of Climate Change Litigation: Navigating Uncharted Waters
2 (i) Carême v. France, (ii) Duarte Agostinho and Others v. Portugal and 32 Others, and (iii) Verein KlimaSeniorinnen Schweiz and Others v. Switzerland ( “Klimaseniorinnen ”)
3 In Klimaseniorinnen a group of senior women from Switzerland, particularly vulnerable to the health consequences of heatwaves, claimed that their government had failed to protect their rights to life and privacy as guaranteed by Articles 2 and 8 of ECHR. The ECtHR found that Switzerland had violated the ECHR.
• Limited carbon budget: The ECHR underscores the progressive depletion of the remaining carbon budget to limit global warming to 1.5C˚ or 2C˚, stressing the duty to implement the necessary measures without delay.
• Balancing policy and judicial oversight: While the Court does not supplant the role of the legislature or executive, it acts as a safeguard to ensure that short-term political or economic considerations do not undermine human rights obligations. The Court applies a double margin of appreciation, affirming that democratic decision-makers hold primary responsibility for setting climate policy, yet courts must ensure that fundamental rights remain protected.
In sum, Klimaseniorinnen underscores a broader judicial trend: addressing climate risks is increasingly viewed as integral to states’ human rights duties under ECHR Articles 2 and 8.
Spillover into Norway
The Norwegian legal and administrative system exhibits many of the same shortcomings as Klimaseniorinnen revealed about Switzerland’s. Consequently, Ms. Mestad at the Green Forum event emphasised the importance of strengthening Norway’s framework, including the adoption of more robust commitments and enhancements to the Norwegian Climate Act (Nw.: klimaloven).
She also noted that international developments are already influencing two ongoing prominent climate cases in Norway which were also covered in our previous article on this topic:
• Greenpeace Nordic v. Norway.4 In this case, the Norwegian Supreme Court upheld the granting of oil exploration licences in the Barents Sea, emphasising issues like uncertain future emissions and the need for political balancing. The case could clarify the scope of impact of ECHR Article 2 and Article 8 on the regulation of
immediate authorisations for fossil-fuel extraction.
• Greenpeace Nordic & Young Friends of the Earth v. Norway.5 This case concerns whether greenhouse gas emissions from the combustion of extracted oil and gas (scope 3 emissions) must undergo impact assessments before permits are granted. Initially, the District Court issued an injunction to halt field development because such assessments were lacking. However, the Borgarting Court of Appeal granted a stay of execution, finding that the District Court’s legal reasoning was flawed. The Supreme Court later set aside the Court of Appeal’s decision and remitted the injunction matter (Nw.: forføyningssaken) for renewed consideration at the appellate level.
On the substance of the main case— particularly the interpretation of the EU’s Environmental Impact Assessment (“EIA”) Directive (often referred to as the “project directive”)—the proceedings continue before the Court of Appeal. Given the complexities involved, the parties requested guidance from the EFTA Court.
• Subsequent Advisory Opinion. Following this request, in its recent advisory opinion in Case E-18/24, Norway v. Greenpeace Nordic, Nature and Youth Norway, the EFTA Court ruled that greenhouse gas emissions from the combustion of extracted oil and gas, even if sold to third parties, qualify as “effects” under the EIA Directive. Consequently, such emissions must be evaluated through a comprehensive environmental impact assessment before any permit is granted.
For further analyse of this opinion, see page 8.
The rest is politics?
Ms. Mestad echoed the notion that corporate action is becoming another important weapon in the climate change litigation arsenal. Climate change litigation from both the human rights
4 HR-2020-2472-P.
5 HR-2025-677-A.
and corporate law perspectives demonstrates just how challenging judicial intervention in this area is, as both areas are fraught by complex societal considerations and competing political and economic interests. Thus, the perhaps most crucial question faced by lawyers and courts in the climate change litigation is how to manage the delicate balance between judicial intervention and democratic governance in climate matters. This issue formed the theme of the panel discussion that followed on from Ms. Mestad’s presentation.
Key themes of the discussion included:
• Judicial legitimacy: The panellists acknowledged that the Norwegian constitutional system is built on the notion that human rights protections sometimes require courts to override majoritarian politics. In the climate context, this particularly applies where minority or future generation interests are at stake.
• Substantive versus procedural review: The panel stressed that courts are not merely checking whether governments “considered” climate impacts but are increasingly analysing how they plan and carry out emission cuts. Hence, this applies not just to procedural safeguards, but also to material obligations.
• Future generations: The principle that today’s policies lock in long-term climate consequences underscores a legitimate basis for heightened judicial scrutiny.
• Norwegian reluctance: Some emphasised that Norwegian courts traditionally defer to the political branches, but this might shift if human rights norms strongly indicate a duty to protect the climate and the environment.
The panel largely agreed that climate litigation will intensify, with key future
developments including growing litigation risk for corporations, increased corporate accountability due to heightened EU transparency requirements and tightening regulations, more zealous litigants in Norway if the legislative process around climate planning is perceived as insufficiently ambitious or enforceable, and incremental developments to jurisprudence to address the unique challenges of climate change by providing more expansive remedies against bad actors.
Closing thoughts
Since our last article on this topic, climate litigation has gained remarkable momentum, fuelled by human rights arguments and a sense of urgency about global warming’s irreversible impacts. Norway is no exception, with its emission goals and petroleum policies under active legal scrutiny. The ECtHR’s readiness to hear climate cases (evident in Klimaseniorinnen) reinforces that states and corporations alike can be held responsible for
insufficient action. Meanwhile, corporate boards facing shareholder suits must increasingly show they have robust, science-based strategies to mitigate climate risks.
As courts become increasingly engaged in climate disputes, the boundary between law and politics continues to be debated. This development does not imply that courts should supplant political decision-making; rather, it underscores that judicial oversight— like in other fields of law—is a crucial safeguard for fundamental rights, including the right of future generations to a healthy, stable climate. These developments highlight the expanding role of courts in guiding governments and businesses towards meaningful, enforceable climate action. At the same time, they underscore that courts, legislatures, and corporations share collective responsibility for effective climate solutions, with each actor required to play its part in confronting what the ECHR has called “one of the most pressing issues of our time”.
About the authors
Adele Matheson Mestad PARTNER
E: amm@bahr.no
M: +47 952 45 244
Adele is the Head of BAHR’s Dispute Resolution team. Drawing on her background from the Office of the Attorney General (Civil Affairs), she has extensive expertise in public law disputes. Adele’s experience spans all levels of the Norwegian court system—including the District Courts, Courts of Appeal, and the Supreme Court – as well as the European Court of Human Rights (ECHR). She is an appointed mediator to the national mediator’s office and is experienced in judicial mediation of complex matters. Adele was admitted to the Supreme Court in 2013 and specializes in international law, human rights, and climate-related matters. Before transitioning to private practice, Adele served as the Director of Norway’s National Institution for Human Rights and was a member of the Freedom of Expression Commission. She is currently a deputy member of the Council of Europe’s expert body on democracy, the rule of law, and human rights. Adele’s extensive experience and commitment to legal and societal issues make her a valuable advisor in complex, high-profile cases.
Daniel Steel MANAGING ASSOCIATE
E: daste@bahr.no
M: +47 930 48 734
Daniel is part of BAHR’s Dispute Resolution team. His practice focuses on international arbitration, cross-border litigation, and investigations & 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, including oil & gas, renewable energy, pharmaceuticals, telecommunications, intellectual property, real estate, arbitration-related litigation, and shareholder disputes. He has handled matters covering a broad geographical scope, including Africa, Asia, Europe, South America and the United States.
Editorial team
E: amm@bahr.no
M: +47 952 45 244
E: atska@bahr.no
M: +47 922 87 727
E: fabrat@bahr.no
M: +47 906 96 963
Adele Matheson Mestad PARTNER
Fanny Bratfos MANAGING ASSOCIATE
Atle Skaldebø-Rød PARTNER
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
Daniel Steel MANAGING ASSOCIATE
E: daste@bahr.no M: +47 930 48 734
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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