BAHRinsight '20/'21

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BAHR in brief STAFF

LAWYERS

PARTNERS

(incl. partners)

200

160

38

BUSINESS SUPPORT

ADMITTED TO THE SUPREME COURT

REVENUES NOK MILLION

40

13

899

Management: Board of Directors:

Managing Partner:

Richard Sjøqvist, Chair

Thomas K. Svensen

Peter Hammerich, Vice-Chair Anne Dahl Frisak Jon Christian Thaulow Tarjei Thorkildsen

As at 1 January 2021 Revenues 2020


BAHR

CONTENTS BAHR in brief The Managing Partner takes the floor Taking the lead in multijurisdictional cases IPOs, not IPOops! Helping new funds find their feet New legislation, new adaptations The Hurdal Platform: Does less EEA mean more EEA law? Green lending on the rise Working in and with the green shift Taking a competitive stance BAHR + BERGEN New Partners and Specialist Partners Awards and ratings Publications and authorships Newsletters published in 2021

02 04 08 12 16 20 22 32 34 38 42 46 48 50 52

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MP TAKES THE FLOOR

Paving the way for world-class performance

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In 2020, BAHR made some hard choices and emerged stronger from necessary renewal processes. We laid the foundations for the BAHR of the future just as the world around us was changing fundamentally. This has paid off. We have shown our mettle in 2020 and the first half of 2021. International competition Nothing stays the same. These last two pandemic years have brought this home. BAHR does not stay the same. We are always on the lookout for renewal and improvement, to best serve our clients. It is of crucial importance that we are open to new ways of thinking. Competition is intensifying. Not only from our Norwegian competitors, but also from international players that are increasingly targeting our markets in a globalising world. This sharpens our focus and spurs us on. BAHR is facing international competition head on. This requires world-class performance on our part. We need to keep honing our specialist skills and expertise. We also need to be efficient and effective – both in delivering for our clients and in interacting with them. We have made great strides in 2020 and the first half of 2021. Both by refining our own processes and by investing in digital solutions. We are even more nimble and switched on, and we get things done.


BAHR

Thomas K. Svensen Managing Partner i BAHR

Leading advisors Our annual BAHRinsight publication is an opportunity for us to showcase the achievements and thinking of some of our expert advisors.

of the entire market surveillance regulation process, she is now handling a large number of Oslo Stock Exchange listings together with Lars Knem Christie and our Finance team.

In this year’s edition, you can read about Ida Marie Windrup, who has returned to BAHR and our Finance group after many years with Watson, Farley & Williams in London. Another BAHR returnee is Pernille Woxen Burum. After five

As in previous years, the Chair of BAHR’s Asset Management & Private Equity group, Peter Hammerich, reflects on industry developments. The group is growing fast and boasts marketleading expertise. We have

years as an Oslo Stock Exchange lawyer, where she was in charge

surged ahead of our Nordic competitors quite some time

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MP TAKES THE FLOOR

We have consolidated our position in Norway and are better placed than ever to offer our clients world-class performance.

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ago and are now one of the main providers in Europe. Norwegian lawyers are second to none. This is exemplified by the key role BAHR played in the restructuring of the airline Norwegian, says Richard Sjøqvist, Chair of BAHR’s Finance group. Helge Stemshaug, Chair of our Competition & EU Law group, tells us about demanding competition law cases, and he is joined by several of his group colleagues in examining the Hurdal Platform and its significance for EEA law in Norway. Our Energy & Environment group, chaired by Jon Christian Thaulow, is busier than ever on new energy, climate technology and green industry engagements.

Never been stronger

BAHR is the sum total of everything – all our people as individuals and as a group. We make each other and our clients better, also when faced with additional requirements and higher expectations from those around us and not least from ourselves. We will stay ahead of the curve on legal developments and on the quality of the advice we provide to our clients. I am optimistic about the future when looking at what my BAHR colleagues are capable of and what we have achieved together. We have consolidated our position in Norway and are better placed than ever to offer our clients world-class performance.


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They would not be forcing the airline into bankruptcy – I knew that much Richard Sjøqvist

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Taking the lead in multijurisdictional cases - At BAHR, we are not only seeking to recruit clever talent. We want lawyers who have the courage of their convictions and are ready to stand up, says Richard Sjøqvist, partner and Head of our Finance group. This was precisely the type of lawyers and advisors that Norwegian Air Shuttle was looking for when they called Sjøqvist in 2019, and embarked on a restructuring process that was not completed until the spring of 2021. In the autumn of 2019, the airline Norwegian had NOK 145 billion in existing and future debts and would shortly thereafter find itself in the midst of a global pandemic that ravaged international aviation. The subsequent restructuring would turn out to make legal history. Absolutely unique in a European context, and a masterclass in preserving value and jobs in companies that find themselves in financial distress. - Our first action when instructed to act in a matter like this is to clearly establish the facts and analyse the interests involved. What are the facts on the ground? What leverage does our client have, and what leverage do the creditors have? Where do their interests overlap and what are the points of contention? We identified such potential leverage in the form of the Gatwick landing slots when we conducted our review of the airline Norwegian. These represented a value that was not reflected on the balance sheet and that had also not been adequately communicated to the creditors. We were in a position to adopt a negotiation strategy based on something substantive. Something that we could bring to the table, says Sjøqvist. In negotiations, Sjøqvist takes inspiration from Nobel laureates John Nash and Thomas C. Schelling: How to arrive at the optimal joint solution, when no one has all the facts? - We knew that the bondholders wanted something better than what they had; a high risk of default, but we did not know what that might be in practice. We approached the bondholders. We showed them the value potential of the landing slots, which would be forfeited in a bankruptcy. - They would not be forcing the airline into bankruptcy – we knew that

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BAHR much. A living airline is worth a great deal more than a mothballed operation. Once the landing slots came into play, we were able to tell the bondholders that valuable assets were available, provided that the airline survived. We have something you can ask for, although it may be difficult to give. Maybe not perfect, but enough to pique their interest. The more we held back, the more they wanted it. It is, however, challenging to create a bondholder consensus. Bondholders are typically a heterogeneous group with many different value drivers. The key focus in such a process must be on building the consensus on shared interests. The situation deteriorates - We had to take a lead on legal strategy in the Norwegian case. We needed to define what fronts we wanted, with whom we should be allied, and when, as well as what tools would get us across the line. It is our ability to identify and apply the legal tools that makes clients approach us, but it is the practical negotiations that determine whether we nail down a deal.

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vaccine timelines were extended, and it became evident that the airline needed additional capital. Norwegian Air Shuttle wanted to find a solution that involved support from the Norwegian State, in parallel with what Scandinavian Airlines, Air France, KLM and Lufthansa had been granted. However, the State said no. - We entered a new stage when the rejection was received on 9 November 2020. One cannot operate for the account of the creditors without a plan that offers a reasonable prospect of success. We needed to come up with a new debt restructuring that would get thumbs up from creditors representing more than 50 percent of the outstanding debt. We had to hatch a plan that would ensure majority support for restructuring. This was no minor challenge when faced with more than 44,000 creditors, and would have been virtually impossible if one had relied on Norwegian Restructuring Act alone.

In the winter of 2020, when the pandemic had reached Norway, we completed, with Norwegian and other external advisors, a major, but voluntary, debt restructuring in the hope that the pandemic would be over by the summer of 2020.

An inspiring solution The solution was to be found in Ireland, where a major part of the European aviation industry has a presence. In Ireland, we were able to organise the creditors into a total of 17 classes. If one class is exposed to loss, but votes in favour of the proposal, this will be binding on all the other classes. The group that leased the aircraft currently used by Norwegian favoured the proposal.

Equity was boosted by more than NOK 15.3 billion, but that was not enough. The pandemic persisted,

- Norwegian petitioned for examinership for its parent company in Ireland and this was


BAHR

Norwegian’s then CFO, and now CEO, Geir Karlsen, at the event marking the airline’s exit from bankruptcy protection on 26 May 2021. Photo: Stian Lysberg Solum/NTB

granted. The next day we applied for restructuring in Norway as well. This meant that we were running parallel processes. A majority in Ireland also meant a majority in Norway, since the creditors that were bound by the Irish plan represented more than 50 percent of the capital necessary under the Norwegian plan. This had not been done before. Against this backdrop, we developed the plans that led to a hybrid capital solution. This instrument enabled creditors to support Norwegian with NOK 1, and thereby get back NOK 2 of the old loans. A bond that represents 200 percent of the invested amount in an old claim. It was quite a clever solution. It stirred the interest of the Norwegian State, which agreed to have another look at funding. The airline Norwegian decided at the same time to close down its longhaul routes, which further induced the Norwegian State to lend the

to see that it was not only possible to reduce debt, but also to attract new capital. The solution we found has attracted attention, and has been a source of inspiration for many involved in corresponding matters internationally, says Sjøqvist. It did in many ways serve as a catalyst for all the other elements that eventually fell into place.

airline NOK 1.5 billion with generous compensation. This solution also attracted other investors, which came

as illustrated by the Norwegian Air Shuttle case, he concludes.

- The Norwegian Air Shuttle case extended over several years and is an example of Norwegian law firms taking a lead on strategy, negotiations and implementation in such situations. We organised the process in 17 jurisdictions, a role often taken by major US or UK firms. Norwegian law firms are second to none, and can easily hold their own against US and UK law firms. Norwegian lawyers have a lot to bring to an international setting, and in a Norwegian social context,

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BAHR

IPOs, not IPOops! A record number of companies listed on the Oslo Stock Exchange in 2020 and 2021. Getting a listing has never been quicker, while the introduction of the Market Abuse Regulation has not made it any easier to be a listed company. - We have just been through a very special period. The Oslo Stock Exchange has been one of the top European exchanges in terms of IPOs, involving a plethora of technology, renewable energy and health companies, says Pernille Woxen Burum, BAHR Specialist Partner. She returned to BAHR in 2021 after five years as an Oslo Stock Exchange lawyer, where she primarily worked in the market surveillance department. The duties of the Oslo Stock Exchange market surveillance department include prime responsibility for the ongoing obligations of listed companies (including MAR) and this was a key focus for Woxen Burum, who was involved in regulatory follow-up, ongoing guidance to issuers and sanctioning of violations.

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- We now have a number of new issuers with varying expertise and understanding of the regulatory and administrative followup implications of a listing. In a frantic listing year, it has been imperative for us to explain to aspiring and new issuers what responsibilities and duties are entailed by the listed company status. It is important to us that those we help with a listing are in fact also ready for it, says Lars Knem Christie, BAHR partner. The Oslo Stock Exchange has in parallel with record IPO activity implemented Euronext systems and regulations, including the implementation of the Market Abuse Regulation (MAR) in the stock exchange regulations. - This has definitely added new layers of complexity. Requirements are stricter and expectations are higher, while companies and their management have limited time to prepare, since the majority of listing processes have been on Euronext Growth and not on the main list, says Christie, before adding:


BAHR

- The MAR implementation, as well as the volume of companies and transactions on Euronext Growth, has most definitely added to both expectations and requirements. It has been an extraordinarily exciting time for us as advisors Many potential pitfalls It has also been exciting for the companies that have completed an IPO in the last year. Capital markets have at times been characterised by considerable volatility, and companies have had to contend with major uncertainty in their own product or service markets, with the pandemic as a backdrop. This situation had made it difficult to deliver on, as well as to communicate, expectations and forecasts.

prices. It is therefore of decisive importance to strike the right balance between what you can say about the future at the time of the IPO and what you are actually able to deliver on, says Christie. - Going from being an unlisted to a listed company is a major change, also in terms of information management. There will typically be a steep learning curve on what information you as an issuer may comment on or and disclose – both externally and internally. Becoming a publicly traded company will in many cases mean having to limit internal sharing of certain types of information and modifying processes accordingly. Externally, comments made to the market may affect the company’s share price, and must thus be in conformity with other information disclosed by the company, says Woxen Burum.

- Many of the newly listed companies are growth companies, with a limited historical financial data record. This ramps up the pressure when it comes to forward-looking MAR is also clearer in this regard than statements. Providing guidance can be previous regulations. MAR makes it clear challenging, and it carries certain consequences. that statements made in investor meetings,

We know from experience that having to row presentations and webcasts also form part of back on previously communicated expectations the picture. You cannot get away with making may have a significant negative impact on market updates by mumbling them in passing. 13 >>>


BAHR

Lars Knem Christie

- You need to carefully consider what you say – and not say. This applies not only to written disclosures in stock exchange notifications, but also to Q&A sessions, to statements made to journalists and analysts – and, significantly, to social media posts. Practice makes perfect, says Christie. - The concept is that you must continually determine whether you are in possession of information that is subject to a duty of disclosure. If you have little experience of this, you may be surprised to learn your responsibilities in this regard. But being overly cautious is not the right approach either. Companies need to specifically decide when they believe that a set of facts amount to insider information, and cannot simply

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hedge their bets by taking a one-size-fits-all approach. The Oslo Stock Exchange makes clear demands on company management in this regard, says Woxen Burum. The compressed listing processes mean that there is often less time for training on issues like this. - This makes it all the more important to get a proper handle on this once listing is in place. Setting up robust systems and procedures for managing insider information, and developing internal knowhow. BAHR is committed to serving as an advisor before, during and after an IPO, concludes Christie.


BAHR

In a frantic listing year, it has been imperative for us to explain to aspiring and new issuers what responsibilities and duties are entailed by the listed company status

Pernille Woxen Burum

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BAHR

Helping new fund The asset management industry is growing fast. Gaining a foothold as a new player is nonetheless more challenging than ever. - You need to have what it takes – it is as easy and as difficult as that. We turn down a number of prospective clients here at BAHR. They have not got what it takes. When we say no, that is the last we ever hear of the project. In most cases that means that they have not been able to get it off the ground, says Peter Hammerich, Partner and Head of the BAHR Asset Management & Private Equity group.

Peter Hammerich

He chairs a group that is expanding continually. - Ten years ago you could provide legal advice on asset management with a couple of dedicated lawyers. These days, however, there is much to be said for having a larger team. We need to cover a lot of ground, including tax and structure, regulatory issues, compliance and fundraising, he says, before adding: - The legal framework facing asset managers is becoming ever more complex and detailed. We have to be continuously updated, and we need to have a thorough understanding of the opportunities available to each asset manager, as well as their investment activities. We are now 25 lawyers and will be 30 by the spring. That sets us apart from our Nordic competitors, and makes us one of the largest teams in Europe. - Bluefront Equity is one example of a newly established

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BAHR

ds find their feet We have a total of 200 years of asset management law experience. This means that we have devoted well over 400,000 hours to this. That brings a certain level of expertise.

asset manager that may succeed. Simen Bjørnstad and Kjetil Haga are both under 40 years, but have extensive experience from seafood sector investments. No other asset manager is focusing on seafood. They are quite simply the first in Europe to pursue such a strategy. They have now launched their first fund, and it will be exciting to see where they go from here. - Another example is Had an Ventures, headed by Ingrid Teigland Akay, which invests in the health sector. A further fairly recent and exciting entrant is Equip Capital, which is headed by Sverre Flåskjer. This team was formerly part of Herkules, but chose to go it on their own. These are some examples of names I expect us to hear more about in future. Hammerich also highlights teams with a longer pedigree, such as Norvestor, FSN and HitecVision.

- These asset managers are becoming slowly and steadily more international, and are predominantly attracting international investors. In addition, these players are increasingly making their investments outside Norway, and setting up offices around Europe. Success does not come easy Hammerich believes that new private equity providers need to meet certain criteria in order to have a shot at making it in competition with existing domestic and international providers. - You need the right team, with the right expertise. This cannot be taken for granted. As I mentioned at the outset, we are at times approached by people who do not inspire the necessary confidence. They represent an investment product that we would not consider investing in ourselves. This means that we are also unwilling to serve

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BAHR as their advisors, he says, before adding: - They may have the right people on their team, but lack the necessary experience and track record. In asset management, you are expected to have done it before. You should have a proven track record of investing in companies, developing them and completing a divestment transaction that reflects the value added.

quarrels and disputes are on the rise in asset management. The contractual framework governing the funds will typically include a no cause termination clause. This enables investors to terminate, by a qualified majority vote, the asset management company’s appointment as asset manager for the funds. This is a decidedly rare occurrence, but it does happen.

Watchdog and trusted advisor

Once the fund is up and running, and BAHR has advised on structure, tax and systems, Hammerich and his colleagues will serve as watchdogs during the operating phase. – Some providers are regulated by the Financial Supervisory Authority of Norway. For them we secure full regulatory compliance. All providers are in practice regulated by investors. We are the watchdog ensuring that everything is done by the book. We tend to sit on the boards of funds or asset management companies, where we keep a close eye on developments. Besides, when the funds make investments, we hope to be awarded our fair share of the transaction instructions in competition with industry colleagues. BAHR excels when we can serve as a trusted adviser and are involved in the daily operation of the funds that we have helped establish, as well as in their ongoing asset management, and not least when our clients make new investments or divest existing holdings. It is of great benefit to have an in-depth understanding of the client’s business when

Hammerich points out that this may also be a source of conflict. – Regrettably, we note that

assisting on transactions. This provides us with an advantage when we have

Hammerich explains that it is difficult to raise capital from new investors from scratch. – You should have one or more investors onboard from the outset. Either by letting investors take ownership stakes in the asset management company, which is becoming increasingly common, or by bringing them in as early investors in the fund. Besides, on the topic of investors and investor networks, you need to have a realistic idea about how much capital the fund will raise, and ensure that the fund size is consistent with your investment strategy. - And last, but not least: Setting up as a new asset manager requires immense dedication. You are committing yourself for 10 to 12 years, or in practice for life. This requires steadfastness and seriousness. You are managing other people’s money, and that level of trust needs to be earned – day in and day out.

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BAHR

Peter Hammerich

assisted on the establishment of the acquiring or divesting fund, he says. Bide your time Hammerich has been watching the Norwegian asset management industry from the inside for 25 years. An industry that, according to him, has gone from the goldrush phase to the institutionalisation phase, with stable growth in new providers of private equity funds, hedge funds, real estate funds or other asset classes. One of the trends he has observed in recent years is family offices increasingly wanting to go it alone and manage their own investments. - I believe that will prove challenging. The advantage of this DIY approach is that you save one layer of fees. It is, however, not straightforward to build a correspondingly competent team. Top teams cost money, and you will easily end up having paid the same. Hammerich expects to see the establishment of additional new providers in Norway in the years to come, in the form of private equity funds, hedge funds and real estate funds. He has a final piece of advice for them: - Becoming a successful asset manager requires patience. You need to bide your time. With time comes experience, and that is crucial. Take our group as an example. We have a total of 200 years of asset management law experience. This means that we have devoted well over 400,000 hours to this. That brings a certain level of expertise, he concludes.

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BAHR

Employment

New legislation, new adaptations Tarjei Thorkildsen, Tor Olav Carlsen and Maren Elvestad of BAHR’s Employment group are closely monitoring employment law developments in the wake of a new employment policy. Close dialogue and sound agreements with employees have never been more important for success. - Collective agreements are mainstream commercial law, and not only a special interest discipline. Collective agreements should be a management focus, says Tarjei Thorkildsen, BAHR partner and Head of our Employment group. On 3 June 2021, the Supreme Court delivered a judgment of significance for the implications of being bound by a collective agreement. Specifically, the case concerned the replacement of a collective agreement after switching to a new employers’ federation, but its significance extends beyond that. The Supreme Court concluded in this judgment that certain provisions of the collective agreement become part of each employee’s employment agreement and that these provisions will not lapse as a direct consequence of the collective agreement no longer being applicable to the employer. <<< 20

The judgment was called a collective agreement bombshell from the Supreme Court, and affects the entire transaction market and how the parties need to address employee rights. Both during and after the transaction. - The case provides important guidance on how collective agreement obligations affect the transfer of undertakings. Collective agreements may also be of decisive importance in daily operations, says Thorkildsen, before adding: - Collective agreements are important and form part of commercial law for the simple reason that they apply to many people, and in multiple ways. That is in the nature of these agreements. They are collective, and they tend to remain in place for a long time. The BAHR lawyers believe that companies which bring collective agreements and union representative dialogue into the board room and senior management meetings have a greater chance of success. - Few things are as destructive to a business as poor relations with union representatives. Those


Tor Olav Carlsen, Maren Elvestad and Tarjei Thorkildsen

that have good relations get things done. Trust and constructive dialogue take time to build, but can rapidly evaporate, says Carlsen, before adding: Some union representatives consider themselves guard dogs, and are focused on finding faults and shortcomings in the company and its management. They have missed the point. Management and union representatives should work together, with the shared objective of ensuring a successful business. The union representatives shall of course stand up for the employees, and advance their views, but they shall do so in furtherance of the overarching objective of creating a better business. Naive approach BAHR keeps close tabs on employment policy developments and their implications for the regulatory frameworks facing employers and employees. A new Government will bring changes. - Absolutely. But there will also be adaptations. We are already in the process of finding new adaptations in response to the changes we

anticipate from new policies, says Thorkildsen. - Restricting the scope for temporary employment or the right to use independent contractors will trigger adaptations. There is no way that a new Government and new policies will bring everyone into permanent employment. That is a naive approach. That would be battling windmills, with the windmills being the dynamic of the new economy and the new platform companies, observes Thorkildsen. - Our thinking is: What will be the new incarnations of work and delivery under the new legislation? Reality has a way of coming up with the best solutions within the regulatory framework applicable at any given time, says Elvestad. - This applies in all fields of law, including employment law. Our mission is to keep abreast of any changes, and to have the solutions ready whenever the need arises, concludes Thorkildsen

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BAHR

THE HURDAL PLATFORM:

Does less EEA mean more EEA law?

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With Senterpartiet (The Centre Party) having run an election campaign focused on examining alternatives to the EEA Agreement, while Arbeiderpartiet`s (The Labour Party) manifesto proclaimed a «rock-solid commitment» to that same agreement, there was considerable interest in learning how these seemingly sharply contrasting perspectives would be reflected in the policy platform of the Støre Government. The Hurdal Platform provided the answer: «The EEA Agreement shall remain intact», but there are multiple suggestions for seeking to exploit its room for manoeuvre. Senterpartiet`s desire to look to Switzerland and the UK appears to have been recognised: The EEA Agreement shall be evaluated anew, with a special focus on neighbouring non-EU countries’ experiences from alternative agreements with the EU.

Exploitation of the room for manoeuvre under the EEA Agreement The Hurdal Platform makes multiple suggestions for seeking to exploit the room for manoeuvre under the EEA Agreement, and states that «The Government shall pursue Norwegian interests more actively within the scope of the Agreement». There shall be a special focus on ensuring «national control on issues such as Norwegian employment, energy and railways». On climate policy, Norway shall pay special heed to Norwegian interests upon changes within the EEA.

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BAHR The railway package The railway reform has sparked extensive debate, and the Hurdal Platform would not appear to put an end to that. The platform proclaims that the Støre Government will as soon as possible embark on a dialogue with the EU for the purpose of securing an exemption for Norway from part of the provisions under the EU’s fourth railway package. The package shall ensure full passenger transport competition on the railways. Parts of the EU’s fourth railway package relating to opening the market to competition were already implemented in Norwegian law in June this year, and the rest of the package was incorporated into the EEA Agreement on 24 September. The Hurdal Platform proposes a reversal of this legislation by seeking to stop any further opening of railway passenger transport to competition, and by stopping the planned opening of railway infrastructure-related operational, maintenance and emergency preparedness duties to competition. The company structure established through the railway reform, which included Vy being spun off as purely a train company, shall also be reviewed with an aim of having fewer companies. It is, however, legitimate to question how much the Government can expect to achieve in discussions with the EU in this regard. Stopping all future competition flies in the face of one of the key pillars of

the EU railway legislation and the stated objective of establishing a fully harmonised single railway market. The legal structure defines a narrow scope for exemptions from this. Although a large and powerful EU country like Germany has been able to secure a much more attractive position with regard to protecting its Vy equivalent; DB, it is likely to prove most challenging for the new Government to negotiate a similar position. Employment and the public sector Safeguarding Norwegian jobs was high on the agenda of both Arbeiderpartiet and Senterpartiet in the election campaign. It is therefore no surprise that the Hurdal Platform aims to «fight for the Norwegian employment model by exploiting the room for manoeuvre under the EEA Agreement, and to pursue active political engagement within the context of EEA cooperation in situations in which Norwegian employment legislation and collective agreements are challenged.» Whether this means more general application of collective agreements, or the use of other policy tools, is not specified. What we do know is that the balance between national requirements regarding wages and other employment terms, on the one hand, and the rules on free movement of services and labour, on the other hand, has been explored in European courtrooms for many years. This has in many ways been a legal battle, and not a political one, as apparently proposed by the Government. The platform also calls for services to be provided by the public sector itself, with much less reliance on the market for service provision. This implicitly

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means that high public sector growth is envisaged. If this is considered in the context of the proposed reversal of the local government reform, it may necessarily entail a considerable expansion of the public sector. Central, regional and local government are considered separate customers under the procurement regulations, and it is not straightforward to solve tasks across municipal borders. In order for tasks to be performed internally one will therefore to a large extent have to expand the public sector by hiring additional personnel at all levels; in central, regional and local government. The new Government goes to extraordinary lengths when it comes to ruling out any role for private providers in some markets. The welfare sector is a case in point, with the statement that «strict regulations shall ensure that the operation of governmentfunded welfare services is not attractive to commercial groups». It is clear that this may trigger a battle over the extent to which EEA law, including procurement law, permits the throttling of outsourcing to private providers in a sector that has until now made a significant contribution to the Norwegian welfare mix. Energy The Hurdal Platform makes it clear that the Støre Government will ensure national control over industrial policy, especially with regard to energy and natural resources. Trygve Slagsvold Vedum stated when the platform was presented that national control over electricity, power and energy policy is important to this Government. One aspect of this is that the Government intends to use Statkraft as a renewable energy development spearhead through active ownership. The platform also states that the Støre Government will not approve new international interconnectors during this parliament. The Government shall «Ensure that decisions on power generation developments and the composition of the Norwegian power generation mix remain national Norwegian decisions. Statnett shall own and operate all international interconnectors.» This is not necessarily in breach of the EEA Agreement, but nonetheless highlights the prominence given to national ownership in the energy policy of the new Government. The Government will also study how Norwegian power exports affect Norwegian security of supply and electricity prices, and what measures can serve to ensure that Norwegian renewable energy remains a competitive advantage for Norwegian industry. However, nothing is said about what specific measures might be contemplated if such study were to show that these exports have a negative impact on the security of supply and electricity prices. Vedum stated during the presentation that the platform makes it «abundantly clear» that Norway shall have sovereignty, also with regard to how we are going to use the cables. This also sets the scene for at legal battle with regard to the scope of the EEA Agreement. Political interference with power flows in interconnectors with EU/EEA countries may raise issues both under the main body of the EEA Agreement and under the detailed EU energy market legislation incorporated into the EEA Agreement. Public procurement and state aid The platform states that the Government will «Change public procurement regulations and practices to support key goals such as sustainability, attractive wage and employment terms,

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BAHR

Arbeiderpartiet leader Jonas Gahr Støre and Senterpartiet leader Trygve Slagsvold Vedum during presentation of the policy platform on 13 October 2021

the use of apprentices, innovation and local spin-off effects. Public procurement needs to be designed, and contract volume tailored, to enable Norwegian businesses to participate in tenders.» It is specifically mentioned that one shall ensure that «transport construction project tenders shall be designed to enable local and regional providers to participate». There is no specific mention of what these regulations will stipulate. The procurement regulations represent an implementation of the corresponding EU legislative acts in Norwegian law, thus implying that there is not necessarily as much room for manoeuvre as signalled by the Government. The public procurement regulations are not only motivated by a desire to ensure that the public sector makes good procurement deals under whatever national policy is being pursued, as it is also a key priority to ensure that suppliers all over Europe are able to compete for public contracts in Norway on a par with Norwegian businesses. The Government’s ambition to protect Norwegian suppliers in tenders must

therefore to a significant extent be balanced Foto: Torstein Bøe / NTB against free movement considerations. The platform also includes some specific public procurement proposals 1. Giving climate and environmental considerations a minimum weight of 30 percent in public procurement decisions, and more where relevant; 2. Prepare a Norwegian model with national seriousness requirements for all public procurement; and 3. Strengthening ownership and tax transparency requirements in public procurement and examine whether public procurers should require public country-by-country reporting in major tender and procurement processes.

Specific proposals in this regard will also have to be harmonised with the implications of underlying EEA directives. The platform entails considerable public spending proposals, with a significant

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strengthening of available policy tools – especially in relation to green transition. The design of specific measures will have to abide by the state aid rules, but the new regulatory proposals from the EU in this regard also favour expanding the room for manoeuvre on aid that facilitates the green shift. The Government may find these developments in Brussels helpful in furthering its agenda. It does indeed appear that the Støre Government favours European cooperation through the EU in the regard. This is somewhat paradoxical, since the platform is otherwise focusing heavily on national ownership and exploitation of the room for manoeuvre under the EEA Agreement. Study of experience with the EEA Agreement The ambition to conduct a study «to examine experience from EEA cooperation in the last 10 years», including examination of «neighbouring non-EU countries’ experiences from alternative agreements with the EU», bears all the hallmarks of a Senterpartiet policy win. Nothing is said about the purpose or consequences of such a study, apart from Støre’s comment during the platform presentation that interesting findings were made in the previous study of the EEA Agreement, as reported in the NOU 2012:2 green paper; «Outside and Inside» (the «Europe Report»), and that such a study would be useful for Norwegian policy debate. The committee preparing the Europe Report was appointed by the Ministry of Foreign Affairs in 2010, headed by Støre, who was then the Minister of Foreign Affairs in the Stoltenberg II Government. The committee then concluded that Norway could be characterised as a three-quarters member of the EU due to the massive incorporation of legislative acts, and that the agreement suffered from major democratic deficiencies. Senterpartiet, including Sandra Borch, who is the current Minister of Agriculture and Food, strongly criticised the Arbeiderpartiet at the

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time for not allowing the Europe Report to compare the EEA Agreement to one or more alternatives. It would appear that the Hurdal Platform is aiming for such an examination of alternatives. There may, however, be strong political pressure for any study of alternatives to the EEA Agreement to also include examination of full EU membership as an alternative. It is more than a decade since the last study of the EEA Agreement. Norway has incorporated a large number of legislative acts over that period, including on the deregulation and opening of various markets. It therefore makes sense to conduct a new study to examine available alternatives and how these relate to the democratic deficiencies uncovered the last time round. Whether there is much to be concluded from the experience of neighbouring non-EU countries is, however, a different matter. It is presumably Switzerland and the UK one has in mind when referring to «neighbouring non-EU countries» in the platform. This begs the question of how representative an examination of those countries’ agreements is of Norway’s relationship with the EU in the years to come. Switzerland’s bilateral and highly fragmented model has evolved pragmatically over a long period of time, and is an example that the EU is unlikely to want to replicate. Experience with Brexit, on the other hand, is so recent that any study in the immediate future will not be able to serve as any form of significant compass for Norway. The Støre Government does undoubtedly have high ambitions in several policy areas where the EEA Agreement will curtail its freedom of action. It also seems clear that the new parliament will provide the Government with majority support for its objectives of focusing more on national ownership, exploiting the room for manoeuvre under the EEA Agreement and seeking exemptions from the fourth railway


BAHR package, since Sosialistisk Venstreparti (The Socialist Left Party) also endorsed these positions in the election campaign. It is, however, more uncertain to what extent the Government will prevail with these positions in negotiations with the EU. The room for manoeuvre is fairly narrow in many policy areas – and often of a more legal than political nature. The platform offers very few specifics on how the room for manoeuvre can be exploited. This is one of the challenges facing the Government: How will it be able to pursue a much more nationally-focused industrial policy, when the EEA Agreement is to remain intact? The EEA Agreement will continue to define the legal scope for such a change of policy direction. The Government is proposing to challenge the EEA Agreement from the inside, in an attempt at pushing the envelope on what can be achieved within the existing room for manoeuvre. Norway has for a long time been best in class on implementation of, and compliance with, EU legislative acts. It will be interesting to see how the Støre Government is now envisaging that this line will change, and how far the most diligent class member is willing to go in challenging the EU.

Helge Stemshaug Partner

Arne Torsten Andersen Partner

Henrik Bjørnebye Partner

Ylva Kolsrud Lønvik Senior Associate

Jone Berg Associate

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BAHR

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BAHR

Green lending on the rise Ida Marie Windrup advises bank lenders. Their practices are becoming greener by the minute. She has joined BAHR three times. First as an associate, thereafter as a senior associate after a secondment to Slaughter and May, and now in March 2021 as a partner after nine years with Watson Farley & Williams in London. - Richard Sjøqvist called me to ask when I would be coming home. That made my choice easy. And it feels like a homecoming. Both to Oslo and to BAHR, says Ida Marie Windrup, BAHR partner, before continuing: - Loan financing has been my field throughout my career. First focused on the maritime industries at Watson Farley, and now at BAHR in relation to a broad range of industries. In Norway, I believe that BAHR is the leading adviser in this field. One reason for this is our ability to balance lender risk considerations against borrower flexibility needs. After all, collaboration between banks and their customers are at the heart of these processes, which we are there to support. Another strength is our ability to change when the market changes. Windrup identifies the rise of sustainable finance, and especially loan financing with a link to specific

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sustainability objectives, as the most significant current market trend. - This is truly exciting. It is a known fact that not every business can become green overnight. However, every business can pursue specific sustainability objectives. In order to reduce their carbon footprint, improve their gender balance or strengthen other environmental or social aspects of their business, she says. Believes the discount will persist At present, green loans and lending linked to sustainability objectives come at a discount. Green loans carry a lower price tag as the result of large appetite on the part of investors. The question is whether this pricing effect will peter out, as operations in conformity with sustainability objectives come to be seen as more of a hygiene factor. - I believe we will see a pricing effect for a long time to come. It is, however, likely that all loans will in future include a sustainability-linked covenant. Current sustainability-linked loans


BAHR

I believe we will see a pricing effect on financing linked to sustainability objectives for a long time to come

Ida Maria Windrup

take a fairly soft approach to the enforcement of these requirements. Meeting the defined objectives will typically get you a margin reduction, while failing to do so will result in a margin increase, says Windrup, before continuing: - We are now seeing that sustainable finance does also have an important positioning effect on business, which also matters in a time when climate and sustainability attract more attention than ever before. Sustainability from different angles BAHR’s Finance group is addressing sustainability and ESG along several dimensions. Key topics include green investment financing, sustainability-linked loan financing, the EU taxonomy and other regulatory issues, compliance, as well as the licence regimes for green industries. - It is really important for us here at BAHR to take a lead on this. We develop with our clients, and are as committed to learning from them as we are to sharing our own knowledge. That also applies in this field. This is how it has always been. This lies at the heart of BAHR, which remains the same as when I first joined in 2008, concludes Windrup. 33 >>>


BAHR

Working in and with the green shift Engagements relating to new energy sources, climate technology and green industry have boomed in 2021. BAHR’s Energy & Environment group has at this crucial time been strengthened with former energy law professor Henrik Bjørnebye. This year has seen the publication of the Government’s Climate Report, with specific measures for meeting climate objectives in Norway. The Energy Report was published before the summer, outlining a green industry and infrastructure transition. This was followed by the Hurdal Declaration, which points in the same direction, before the climate year came to a close with COP26. BAHR’s Energy & Environment group keeps a close eye on these processes and has had an active year with a large number of engagements contributing to the green shift. - The year started with the IPO of Aker Horizons, Aker’s new green platform. It thereafter continued with the IPO of the battery company Freyr in New York, which will be establishing a large-scale industrial facility in Mo i Rana, Northern Norway. We have acted for Aker Carbon Capture, which has comprehensive carbon capture plant plans, and we have been heavily involved with the Klemetsrud plant and its carbon capture vision, says Jon Christian Thaulow, Partner and Head of the BAHR Energy & Environment group, before adding: - We have also assisted with regulatory issues on the Hegra project, which is a collaboration project between Statkraft, Yara and Aker that is planning the establishment of zero-emission fertiliser production at Herøya.

Jon Christian Thaulow

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Sun and wind power projects Thaulow and his team have also acted on multiple offshore wind power engagements. The Energy Report


The Norwegian battery company FREYR obtained a NYSE listing on 8 July 2021 Photo: Julian Cannon/FREYR

also occasioned the publication of proposed guidelines on how licences for offshore wind power projects should be awarded. Their involvement with that process has been important, and continues under the new Government. We are assisting providers that are positioning themselves for the filing of offshore wind power project licence applications. The team has also worked internationally with some of the same issues. - We have been advising on the collaboration project between Aker Horizons and Hanwha Solutions, one of the leading solar panel manufacturers in the US, with Hanwha having taken an ownership stake in Aker Horizons’ subsidiary REC Silicon. This transaction and collaboration illustrate the potential in establishing efficient solar panel production in the US, through US companies that create US jobs, in competition with China.

Professor on the team BAHR was also awarded a new framework agreement with Statnett, with Thaulow attributing much of this achievement to BAHR’s recruitment of former University of Oslo professor Henrik Bjørnebye, one of Norway’s leading energy law specialists. - Having Henrik on the team enables us to offer a combination of specialist expertise on regulatory issues and EU law, with the project, industry and transaction expertise that is the hallmark of BAHR. The market has reacted enthusiastically to this. The Energy & Environment group, which now boats 33 lawyers, was involved when Sval Energi acquired Spirit Energy, and is advising on the upcoming IPO of Vår Energi. At the tail-end of the year, the group assisted when Aker BP concluded an agreement to acquire Lundin Energy’s oil and gas operations in Norway. This transaction will be the largest on the Norwegian continental shelf since the merger between the oil and gas operations of Statoil and Hydro in 2007. 35 >>>


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BAHR’s Energy & Environment group outside our office at Tjuvholmen, Oslo

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BAHR

Taking a competitive stance Helge Stemshaug’s team and the client did not cave in when the Norwegian Competition Authority wanted to block the merger between Sport 1 and the Gresvig bankruptcy estate. They got a yes in the end, and Norway’s largest sports equipment retailer came into being. Solving complex competition law issues requires a multidisciplinary approach. Major mergers present Stemshaug, his team – comprising an economist in addition to the lawyers – and our clients with challenges within law, economics, politics, lobbying, communications and media relations.

Gresvig bankruptcy estate in 2020. The Norwegian Competition Authority at first wanted to block the merger, but relented a few days before the deadline expired.

- When I first joined BAHR, Norwegian politicians were discussing how many banks and oil companies we should have and whether foreign companies should be permitted to invest in Norway. All that is behind us now. At present, government involvement is limited to examination of mergers’ effect on market competition, as well as national security considerations.

BAHR and its clients will in merger control cases typically engage in pre-notification contact with the Norwegian Competition Authority. Thereafter, following notification, the Authority will have 25 working days to issue a notice of potential intervention, without having to provide any thorough explanation.

Stemshaug and his team were advising when Bjørn Rune Gjelsten of Sport 1 and Olav Nils Sunde, who for many years owned Gresvig, wanted to acquire the

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- We pulled out all the stops upon receiving the first negative notice from the Authority.

- 45 days later you receive the formal 100-page notice, setting out arguments against the merger and presenting the reasoning behind the decision contemplated by the Norwegian Competition Authority. When that happens, you need to have your strategy and - not least your documentation ready, and put


BAHR

The three partners in BAHR’s Competition & EU Law group; Helge Stemshaug, Arne Torsten Andersen and Beret Sundet

We pulled out all the stops upon receiving the first negative notice from the Authority 39 >>>


BAHR

together a line of argument that stands up to the closest scrutiny. There were only a very few examples of the Norwegian Competition Authority having changed its position after giving a formal notice. Thought there would be more buyers A key element of the Norwegian Competition Authority’s arguments against the merger was that the Authority believed there were a number of other potential buyers of the Gresvig estate. The Authority also believed that Olav Nils Sunde was planning a buyback of Gresvig after the bankruptcy. - The main question we posed was whether it would in fact represent any impediment to <<< 40


BAHR

- The Norwegian Competition Authority argued in its reasoning that many Norwegians are uncomfortable about shopping online. That is not correct. I think we can safely conclude in 2021 that online shopping is here to stay, in all parts of Norway, and is growing fast. Major consequences Merger control cases have fairly brutal outcomes. If the Norwegian Competition Authority puts its foot down, the merger is typically shelved. The parties may bring the matter before the Norwegian Competition Appeals Tribunal, but it is a very rare occurrence for them to take it all the way to the Court of Appeal. - Only once has such a case been brought before the Court of Appeal, which was in connection with Schibsted’s acquisition of Nettbil. The reason for this is that it simply takes too long. If you do not get a thumbs up for the merger from the Norwegian Competition Authority or the Norwegian Competition Appeals Tribunal, that is unfortunately the end of the matter in most cases. After an extensive documentation and argumentation effort on the part of the clients and BAHR, the Norwegian Competition Authority nonetheless did a U-turn and approved the merger between Gresvig and Sport 1. Norway’s largest sports retailer came into being. Newspaper cutting from DN, 23 September 2020

competition for Gresvig and Sport 1 to join forces as one large retail chain, that would be larger than XXL. There was nothing difference between a combined Gresvig and Sport 1 chain and a Gresvig chain and a Sport 1 chain that operated independently of each other. The actual competition situation, now and in the future, is critically dependent on developments in online shopping.

- Cases like this illustrate that the most challenging parts of practising law cannot be replaced by robots, says Stemshaug. - We are faced with a highly professional opponent and are intellectually challenged at every turn. This is certainly demanding, but we have the resources and experience to do what it takes, leave no stone unturned and add that extra touch to meet the stringent quality expectations of us and our clients. That improves the odds of a successful outcome, he concludes.

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BAHR + BERGEN

BAHR opened its Bergen office in October. This gives us a targeted presence, from which we will provide first-rate legal and strategic assistance to businesses and organisations in the Bergen region and Western Norway. The Bergen office is a fully integrated part of BAHR, although with a special focus on shipping, fisheries and aquaculture, along with finance and asset management, as well as real estate. A physical presence in the capital of Western Norway brings us close to relevant industry clusters, educational and research institutions, as well as government bodies, in the Bergen region and Western Norway. Our Bergen office team includes Lisa Marie Opdahl, Partner, and Øystein Meland, Specialist Partner. Lisa Marie Opdahl joined BAHR in 2011, where she has had a special focus on shipping, offshore and aquaculture. She heads BAHR’s newly-established OCEAN group along with our shipping partners Geir Gustavsson and Anne Dahl Frisak. Øystein Meland is Bergen’s leading shipping lawyer and altogether one of Bergen’s most experienced business lawyers. Meland brings unique knowledge and experience to the OCEAN group, of particular relevance to maritime and marine industries operating <<< 42


BAHR

Partner Lisa Marie Opdahl, Specialist Partner Øystein Meland and Partner and Head of the OCEAN group, Geir Gustavsson, joining up in front of the camera in Bergen. Photo: Morten Wanvik

out of the West Coast of Norway. Meland will also serve as a mentor and role model for his younger colleagues at the Bergen office. Meland is admitted to the Norwegian Supreme Court and is certified as both an international arbitrator and mediator. He drafted and negotiated the Norwegian Standard Shipbuilding Contract ("Ship 2000") and has authored a comprehensive commentary on shipbuilding contracts based on the Norwegian Standard. Meland is also a highly valued speaker/lecturer at international maritime conferences. The ocean industries are key pillars of BAHR’s practice. Advising shipping clients has been a priority ever since the firm was founded in 1966. The OCEAN group now strengthens BAHR’s focus on all ocean industries, including shipping, aquaculture and fisheries. Our new Bergen office brings us closer to clients operating from the West Coast of Norway.

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BAHR

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BAHR Internal promotion

New Partners

Jonathan Uggedal, Asset Management

Lisa Marie Opdahl, OCEAN

External recruitment

Andreas Rørvik, Real Estate

Ida Marie Windrup, Finance (BAHR 2008-2012)

Arne Torsten Andersen, Competition & EU law (BAHR 2007-2013)

Trond Lingaas, Energy & Environment

Markus Heistad, Asset Management

New Specialist Partners

Internal promotion

Harald K. Selte, Competition & EU law

External recruitment

Pernille Woxen Burum, Finance (BAHR 2010-2017)

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Øystein Meland, OCEAN

Henrik Bjørnebye, Energy & Environment


BAHR

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BAHR

Awards and ratings Awards • Corporate Firm of the year, Norway, IFLR European Awards 2021 • Dispute Resolution Team of the Year Norway, Benchmark Litigation 2020 Europe Awards • Law Firm of the Year Norway, Benchmark Litigation 2019 Europe Awards • Most Innovative Law Firm of the Year Award (Norway), IFLR European Awards 2019 and 2017 • Patent Litigation Firm of the Year (Norway), 2020, 2019 and 2018, Global IP Awards • Firm of the Year 2019 (Norway Contentious), Managing Intellectual Property EMEA Awards 2019 • Firm of the Year 2018 (Norway Copyright), Managing Intellectual Property, IP Stars 2018 • Norway Law firm of the Year 2018, Chambers Europe Awards 2018 • Norway Legal Adviser of the Year 2018, Mergermarket European M&A Awards 2018

Ratings • BAHR has 7 top ratings in Chambers Global 2021; six Band 1 and one Band 2 • Only Norwegian law firm with the top rating; Band 1, in all categories, Chambers Global 2020, 2019, 2018, 2017 and 2016 • BAHR has the top rating «Elite firm» in the category Competition law» in the 2020 and 2021 editions of GCR 100 • BAHR has the top rating; Tier 1, in four categories in IFLR1000 • BAHR has 15 top ratings; ten in Band 1 and five in Band 2, in Chambers Europe 2021 • BAHR has 18 top ratings; sixteen in Band 1 and two in Band 2, in The Legal 500 • BAHR has the top rating; Tier 1, in the categories Energy, General Corporate Tax, Tax Controversy, Indirect Tax, Transactional Tax and Transfer Pricing from the World Tax and World TP • In the annual Finansavisen Lawyer Survey, BAHR and the firm’s partners have for a number of years achieved top rankings in several categories.

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BAHR

Publications and authorships In addition to sharing knowledge through a large number of seminars and lectures, newsletters and own legal publications, BAHR and the firm’s personnel contribute editorial and legal content to numerous publications and studies. Moreover, a number of BAHR lawyers are authors, co-authors or editors of recognised legal titles. Some of these are listed here:*

Own publications, legal booklets and studies

• The Private Equity Review, Norway Chapter • The Acquisition and Leveraged Finance Review,

• A-Z on tax for private equity • UCITS – Tax for funds and unit holders • European long-term funds in a Norwegian

• The Legal 500 Country Comparative Guides 2021

• • • • • • • • • • • • •

context Family Office - structuring and organisation Conflicts of interest in asset management Fund management and the use of «tax havens» MiFID II and Norwegian market players Oil and Gas in Norway – An introduction Cross-border M&A in Norway 2015-2020 Norwegian Public M&A Deal Study Norwegian Private M&A Survey – Statistics and Trends Litigation in Norway Arbitration in Norway BAHR Energy Insight BAHR’s employment law and M&A overview Sustainable finance for asset managers and advisors – The taxonomy and SFDR: Requirements applicable to Norwegian providers, version 1 Sustainable finance for asset managers and advisors – The taxonomy and SFDR: Requirements applicable to Norwegian providers, version 2 Sustainable finance – Regulatory overview and practical advice for asset managers and advisors Financial activity in Norway – Legal monopoly ripe for change

Utenlandske fagbøker og tidsskrifter • Chambers Patent Litigation Guide, Norway • • • • • • • • •

Chapter The Asset Management Review, Norway Chapter The Banking Regulation Review, Norway Chapter The Corporate Governance Review, Norway Chapter The Legal 500 Intellectual Property Comparative Legal Guide, Norway Chapter The Lending and Secured Finance Review, Norway Chapter The periodical Marlus by The Scandinavian Institute of Maritime Law; International arbitration in the Norwegian oil & gas industry

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7th ed. – Blockchain

• The Asset Management Review, 10th ed., Norway Chapter

• The Lending and Secured Finance Review 2021, Norway Chapter

• Lexology’s Shipping Edition 2022 • Fintech 2021, a practical cross-border insight into fintech law

• The Banking Regulation Review, 12th ed., Norway Chapter

• BAHR Energy Insight • BAHR - Norwegian Private M&A Survey, Statistics and Trends, 2021 Edition

• BAHR – Abandoning LIBOR as a lending benchmark rate

• BAHR - Oil and gas in Norway 2021

Regular columns and articles • Finansavisen • Estate • Juridika

Expert comments in Juridika • Tarjei Thorkildsen: Comments on the Supreme Court judgment in the Skanska case

• Are Stenvik: Comments on the Supreme Court order in the Lovdata case

• Frederik Zimmer: What is wrong about tax havens

• Are Stenvik: Comments on the Supreme Court judgment in the Frøybas case

Topical articles in Revisjon og Regnskap • Tax treatment of co-investment schemes • Active owners in the private equity industry • UCITS and the permanent establishment criterion

• Share consideration and wage taxation

Books • Frederik Zimmer (ed.) and Advokatfirmaet BAHR: Business, Company and Tax. Taxation of the Self-Employed, Companies and Owners, Universitetsforlaget. • Magnus Aarbakke, Asle Aarbakke, Gudmund


BAHR

• • •

• • • • •

Knudsen, Tone Ofstad and Jan Skåre: The Annotated Private Limited Companies Act and Public Limited Companies Act, Universitetsforlaget. Magnus Aarbakke and Asle Aarbakke: Partnerships, Universitetsforlaget. Gudmund Knudsen and Geir Woxholth: The Annotated Foundations Act, Gyldendal. Finn Arnesen and Are Stenvik: Internationalisation and Legal Method, with a Focus on the Role of EEA Law in Norwegian Law, Universitetsforlaget. Viggo Hagstrøm and Are Stenvik: The Law of Torts, Universitetsforlaget. Are Stenvik: Patent Law. Marketing Law Excerpts, Cappelen Damm Akademisk. Are Stenvik: Patent Law, 4th edition. Cappelen Damm Akademisk. Birger S. Lassen and Are Stenvik: Trademark and Domain Name Law, Universitetsforlaget. Aase Gundersen and Are Stenvik:

• • • •

• •

• •

Current Issues in Intellectual Property Law, Universitetsforlaget. Birger S. Lassen and Are Stenvik: Design law. An Introduction, Cappelen Damm Akademisk. Are Stenvik: The Scope of Patent Protection, Cappelen Akademisk. Joachim M. Bjerke: Transfer Pricing. Pricing of Transactions between Associated Parties for Tax Purposes; A Historical and Comparative Study, Tano Aschehoug. Jan B. Jansen and Joachim M. Bjerke, Norwegian Petroleum Taxation. An introduction, BAHR. Peter Hammerich, Klaus Henrik Wiese-Hansen, Individual and Group Pension Agreements, Gyldendal Akademisk The list is not exhaustive Peter Hammerich, Klaus Henrik WieseHansen, Kollektive og individuelle pensjonsavtaler, Gyldendal akademisk * The list is not exhaustive

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BAHR

Newsletters published in 2021 December • • • •

Asset Management | The Financial Supervisory Authority of Norway updates its outsourcing guidance Marine Insurance | Clarification on limitation of an assured’s claim following rejection of cover by the insurer Company legislation amendments – transparency on ownership and attendance of the Shareholders’ Meeting Company Law | Company legislation amendments – transparency on ownership and attendance of the Shareholders’ Meeting

• Asset Management | Sustainable finance: update from the Ministry of Finance on a new Sustainability Disclosure Act • Asset Management | Sustainable finance: EU has published final rules on what investments are considered environmentally sustainable under the Taxonomy

• Finance | The EU Capital Markets Union – what are the implications for Norway? | No. 16/16 • Competition Law | Tina Søreide appointed new Director General of the Norwegian Competition Authority – a change of course for the Authority?

• • • • • •

Employment | New Supreme Court judgment – medical record snooping was cause for dismissal Finance | The EU Capital Markets Union – what are the implications for Norway? | No. 15/16 Asset Management | The European Commission proposes amendments to AIFMD and the UCITS Directive Finance | Changes to the Euronext Growth admission processes: longer, but more flexible – new “flexible track” Asset Management | The Financial Supervisory Authority of Norway clarifies investment limits Employment | Reminder of the deadline for reporting executive remuneration under the new rules

November • Finance | The EU Capital Markets Union – what are the implications for Norway? | No. 14/16 • Asset Management | Sustainable finance: SFDR – further postponement of Level 2 rules and other clarifications from the EU

• Asset Management | The Financial Supervisory Authority of Norway curtails PE investments for insurance companies and pension funds

• • • • • • • • •

Finance | The EU Capital Markets Union – what are the implications for Norway? | No. 13/16 Employment | Transfer of unused annual leave entitlement Comments on Supreme Court judgment HR-2021-2201-A Dispute Resolution | Governing law of arbitration agreements: Enka v Chubb revisited Finance | The EU Capital Markets Union – what are the implications for Norway? | No. 12/16 Finance | The EU Capital Markets Union – what are the implications for Norway? | No. 11/16 Tax | Changes in the Fiscal Budget for 2022 Financial Regulation | «Finfluencers» and the crypto market – stricter regulation is anticipated Employment | New judgment – The Court of Appeal struggles with its interpretation of the law, but nonetheless arrives at the correct conclusion

• Finance | The EU Capital Markets Union – what are the implications for Norway? | No. 10/16 • Data Protection | The National Security Act

October • • • •

Technology | New expert group aims to foster sharing and utilization of industrial data Asset Management | Sustainability information for asset managers – presumed final rules for green products Finance | The EU Capital Markets Union – what are the implications for Norway? | No. 9/16 Employment | New judgment from the Borgarting Court of Appeal – When is the employee sick in the sense of qualifying for sickness benefit?

• • • • • • • • •

Finance | The EU Capital Markets Union – what are the implications for Norway? | No. 8/16 Competition and EU law | The Hurdal Platform Fisheries and aquaculture | New aquaculture licensing scheme proposal circulated for consultation Tax | The Fiscal Budget for 2022 Finance | The EU Capital Markets Union – what are the implications for Norway? | No. 7/16 New sanction regime for violations of the Pharmacy Act and the Medicines Act enters into force on 1 January 2022 Employment | The transfer of undertakings – Judgment provides an important reminder Finance | The EU Capital Markets Union – what are the implications for Norway? | No. 6/16 Competition and EU law | Competition Act amendments: What is happening to the Norwegian Competition Appeals Tribunal?

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BAHR

September • • • • • • • • • • • •

Financial Regulation | New provisions on mandatory outsourcing reporting Finance | The EU Capital Markets Union – what are the implications for Norway? | No. 5/16 Employment | Inclusion of travel time in working hours – new ruling from the EFTA Court New beneficial owner register provisions – what are the obligations applicable from 1 November 2021? Finance | The EU Capital Markets Union – what are the implications for Norway? | No. 4/16 OCEAN | Impact Assessment Program for Mineral Activities on the Norwegian Continental Shelf Finance | The EU Capital Markets Union – what are the implications for Norway? | No. 3/16 Employment | Violation of rules was cause for dismissal Fisheries and aquaculture | Rolling MTB trial scheme for the aquaculture industry Norway to implement the EU STS framework for synthetic securitisation Finance | The EU Capital Markets Union – what are the implications for Norway? | No. 2/16 Finance | The EU Capital Markets Union – what are the implications for Norway? | No. 1/16

Tax | Important changes in the Norwegian petroleum tax regime

August • Employment | Collective agreements trump individual employment agreements • Real Estate | One Supreme Court ruling rendered under dissent, one dismissed appeal and one legislative proposal – what is the status for development agreements and sequence requirements?

• Employment Finance | New judgment from the Borgarting Court of Appeal – Was the stated cause of dismissal genuine and fair?

• Asset Management | Sustainable finance: SFDR – New clarifications from the EU • Employment | New judgment from the Gulating Court of Appeal – new duties within the scope of the managerial prerogative

• Shipping | The European Green Deal – “Fit for 55 Package”: Maritime Sector Employment | New judgment from the Court of Appeal: Important reminder to consider personnel affiliation in relation to the organisation and operations wanted by the employer

• Asset Management | SPACs – are these considered funds in Norway?

July • • • •

Asset Management | Registered managers and marketing to retail investors Fisheries and aquaculture | The Government’s aquaculture strategy Dispute Resolution | Recent developments on breaches of pre-arbitration procedural requirements Employment | Report on the future of employment – what may the proposed changes mean for employers

June • Employment | New judgment from the Labour Court – Stricter formal requirements for dismissal from businesses with collective agreements

• • • • • • • • •

Asset Management | Requirements applicable to asset managers under the new Transparency Act Asset Management | Sustainable finance: What are the implications of the new EU rules for investment advisors? Employment | What can the employer do when annual leave scheduling does not go entirely to plan? Asset Management | New provisions on fund marketing Company Law | Corporate legislation amendments – equal status for physical and digital meetings, etc. Compliance | Towards mandatory due diligence on human and labour rights in Norway Shipping | The Norwegian Government’s Roadmap for Hydrogen: Maritime Sector Environment & Energy | The Norwegian Government publishes its policy plan for energy industries Employment | New judgment from the Labour Court on seniority – its significance in restructuring and furloughing processes

• BAHR Energy Insight | Which way will the wind blow for wind power? • Employment | New judgment from the Supreme Court – Implications of collective agreement replacement • Environment & Energy | Strategic climate change litigation on the rise: Can private oil companies be held liable for failing to meet the emission targets of the Paris agreement

May • Data Protection | Safeguarding personal data – penetration testing • Tax | Revised National Budget for 2021 | No surprising tax change proposals • Asset Management | Sustainable finance – Regulatory overview and practical advice for asset managers and advisors

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BAHR April • Shipping | NOMA – Introduction of new Fast Track Arbitration Rules • Marine Insurance | The Norwegian Supreme Court brings an end to the Stolt Commitment saga • Shipping | EU Taxonomy – Classification system for sustainable economic activities – approval by the European Commission on 21 April 2021

• Asset Management | Norway implements the provisions on European venture capital funds and long-term investment funds

• Employment | New clarifications on the calculation of working hours • Asset Management | The tax return for 2020 • Technology | The Norwegian Government’s strategy for data as a resource

March • • • • • • •

Employment | Judgment on dismissal during probation period – the applicant’s disclosure obligation Competition Law | Norwegian Government stops the sale of Bergen Engines Dispute Resolution | Witness evidence – new report confirms lack of accuracy of fact witness memory Dispute Resolution | Revision of the IBA Rules on the Taking of Evidence in International Arbitration Shipping | ASVTIME – New time charter party for offshore oil, gas and renewables Asset Management | SFDR enters into effect in the EU – Implications for AIF managers Construction | New construction case law from the Courts of Appeal

February • Asset Management | The AIF Act and registered managers • Asset Management | The Financial Supervisory Authority of Norway proposes amendments to the mandatory outsourcing reporting provisions

• Asset Management | Internal control for managers of alternative investment funds • Intellectual Property | Ownership, access and use of data

January • • • •

Summary of the Data Privacy Year 2020 Shipping | EU Taxonomy – Classification system for sustainable economic activities Finance | MAR enters into force in Norway on 1 March – what do you have to do? Construction | The Construction Year 2020

• Fisheries and aquaculture | Sustainability initiatives in the seafood industry

All newsletters are published on www.bahr.no

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Photos: Photos by Erik N.H. Krafft unless another photographer is named. External photos of the BAHR building by Ole Walter Jacobsen. Design and layout: Solgård Design AS


Advokatfirmaet BAHR AS www.bahr.no


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