International Commercial Arbitration Q3 2025
This update explores trends and developments in international commercial arbitration from a Norwegian perspective – together with our views.
The main topic in this Q3 2025 Newsletter, is the Grand Opening of the Norwegian Arbitration Association – and what we believe are the most important next steps for the association.
We will also take a closer look at the results from BAHR and WR’s survey regarding access to evidence in arbitration – where we, among other things, advocate more strictness towards parties deliberately violating tribunals’ evidence rulings.
Furthermore, we will, as always, provide the latest NOMA News and highlight What’s On the Agenda – where the biggest news is the launch of the updated Norwegian Standard Shipbuilding Contract (SHIP25) with a NOMA arbitration clause.
Norwegian Arbitration Association (NAA) – Grand Opening, but what’s next?
Background
On 25 September 2025, the newly founded Norwegian Arbitration Association (NAA) had its Grand Opening in the venerable Gamle Festsal at the University of Oslo – with an opening speech from Supreme Court Justice Ingvald Falch. As touched upon in our Q2 2025 Newsletter, the aim of the NAA is to promote interest in and knowledge of Norwegian commercial arbitration and Norway and the Nordics as arbitration venues. To achieve its objectives, the NAA will collaborate with the Oslo Centre of Commercial Law (OCCL) in organising the annual Norwegian Arbitration Day and the commercial arbitration course which is to be held every second year. The NAA also has the ambition to publish an “Arbitration in Norway” book every other year. Moreover, the association will, according to its articles, also actively engage in legislative processes to enhance the legal framework for commercial arbitration in Norway.
Considering the many arbitration initiatives already in place in Norway – a fair question is whether we need the NAA?
Our answer to this is yes! We believe the establishment of the NAA is an important step in the right direction in the development of Norwegian (and Nordic) commercial arbitration. Below we will highlight the most important reasons.
The NAA will serve as an umbrella for Norway’s different “arbitration camps”
First and foremost, the association will unite the different arbitration “camps” in Norway through its broadly composed Advisory Board – which consists of the following arbitration practitioners and academics:
Professor Giuditta Cordero Moss (UiO), Research Fellow/Lawyer Christian Hauge (NIFS/Wiersholm), Lawyer Marie Nesvik (Wikborg Rein), Lawyer Kristine Hyldmo Bjørnvik (Thommessen), Lawyer Thomas K. Svensen (BAHR), Lawyer Trond Sollund (Schjødt), Lawyer Silje Dagsland (Haavind), Lawyer Nora J. Fredstie (BAC Beachcroft), Indipendent Arbitrator Nina Lauber-Thommesen, Professor Yuliya Chernych (INN), Lawyer Asle Bjelland (Kluge), Lawyer Sverre Bjelland (Vår Energi), Associate Professor Sondre Dyrland (UiO), Lawyer Kjersti Lekerø (Kvale), Indipendent Arbitrator Knud Jacob Knudsen, Lawyer Tommy Arnulf (Sands), Lawyer Frode Innjord (Hjort), Lawyer Aron Solheim (Glittertind), Executive Vice President. Legal & Compliance Helen Rygh Torstensen (Equinor), Associate Professor Herman Bruserud (UiO), Lawyer Tage Brigt A. Skoghøy (DLA Piper) and Lawyer Andreas Nordby (AdeB).
The Norwegian arbitration community is very competent, but small compared to other countries. It is thus key that the high-quality resources available are used efficiently in relation to clearly defined success criteria. This was the main driver behind the establishment of the Norwegian Arbitration Day (NAD) in 2018 (first time held in 2019) – which quickly grew to become a great success. However, as this initiative was taken over by the Scandinavian Institute of Maritime Law (UiO) post covid, the NAD did not continue to serve the original idea behind it. Thus, and to use the words of NOMA’s chair Christian Hauge (in one of the many congratulatory speeches at the Grand Opening): The Norwegian arbitration community, just like the people living in Bergen, needs a strong umbrella!
However, even if bringing the different “camps” together under one strong umbrella is important, no change will come without action. So, the next important question is what the NAA should focus on – both in the short and long term.
Short (and long) term: NAA will (hopefully) be a catalyst for the publication of arbitration awards and statistics
In line with what we advocated in our Q4 2024 Newsletter, everybody involved in Norwegian commercial arbitration should, within their area of law, work to create a culture for effectively showcasing how this area of law works in practice – by making the awards public, in full or in part. On this point, it is in our view important that the “best does not become the enemy of good”, and that the Norwegian academics should lead the way in making Norwegian arbitration more transparent.
Following our Q4 2024 Newsletter, the Supreme Court of Norway used a Norwegian ICC arbitration award from October 2024 when solving one of the legal questions in the judgment HR-2025-977-A (Jordal Amfi), cf. sections 77 – 79. In our view, this underscores the importance of bringing commercial arbitration awards to public attention, so they potentially can, and without going into the question of arbitration award’s relevance and weight as a legal source, serve as examples of how skilled and experienced arbitrator’s rule.
It is thus very encouraging that it was announced at the Grand Opening that the NAA will take on the task of getting Norwegian arbitration awards published through its publication “Arbitration in Norway“. In the Nordics, maritime arbitration awards have been published in “Nordiske Domme i Sjøfartsanliggende” since 1900. However, in other areas of law, there is no such tradition or “channel” for bringing the awards to public attention. We therefore encourage Norwegian arbitration practitioners to go through the awards they have been involved in and seek permission to publish via the parties’ counsel. The threshold for what is regarded interesting to “the general public” should be very low. And, if permission is difficult to obtain, we once again highlight Mikal Brøndmo’s article “Post M&A Disputes: Recent Nordic Case Law, Especially Regarding Loss Calculation” in The Swedish Arbitration Yearbook 2022, Chapter 6, as a good example of how to at least bring the crux of the awards to public attention.
In addition to the task of being a catalyst for publishing “gold from the archive”, we also believe that the NAA should take on the task of collecting data for the generation of relevant arbitration statistics each year (starting with 2025). Considering that there are still many ad-hoc and NOMA arbitrations, the number of initiated arbitration cases, the value in dispute and the potential awards rendered is a “black box”. We believe it will be easier to showcase Norwegian commercial arbitration if we get trustworthy data on the table.
Long (and short) term: The NAA can take the lead in updating and aligning the Norwegian (and Nordic) Arbitration Act
As highlighted above, it follows from the NAA’s articles that it shall actively engage in legislative processes to enhance the legal framework for commercial arbitration in Norway. In our view, this “project” should have both long and short-term success criteria.
First and foremost, the NAA should start right away to engage its Advisory Board and members to receive input on the parts of the Norwegian Arbitration Act that potentially need revision. The Norwegian Arbitration Act has now been in force for 20 years, and it is time to properly discuss potential updates in line with the development in international commercial arbitration. As reported in our Q1 2025 Newsletter, the UK Arbitration Act was updated in February 2025 (amending the previous Act from 1996), aimed at maintaining and strengthening the highly established position of English Arbitration in international disputes. Inspiration may also be sought therefrom.
As we advocated in our Q1 2025 newsletter, the Norwegian, Danish, Swedish and Finnish governments should jointly update and align their respective arbitration acts to underscore the Nordics as collective arbitration-friendly jurisdictions. The NAA should, depending on the outcome of the above proposed “sounding”-exercise, use the opportunity to take the lead in this process and work for governmental understanding and support for the dispute resolution sector as an important part of the Norwegian (and Nordic) service industry.
BAHR and WR’s arbitration survey – access to evidence in arbitration
General
On 10 September, BAHR and Wikborg Rein jointly hosted their annual arbitration conference, which this year covered the topic of obtaining evidence in international arbitration. This was the fourth seminar in a row, and we appreciate their initiative in bringing together the arbitration community for both an educational and a social event.
In a fully packed auditorium, BAHR partners Amund Bjøranger Tørum and Atle Skaldebø-Rød first guided us through the findings of their recent survey (which can be found here). The survey was based on a questionnaire provided to the participants in advance of the seminar and invited the respondents to share their personal experiences with issues such as requests for disclosure, applicable guidelines, frontloading and adherence to deadlines.
As both Tørum and Skaldebø-Rød noted in their review, they often observed that the parties would dedicate a lot of effort and resources on document requests without always obtaining the desired results. To avoid unnecessary work, the parties were encouraged to formulate narrower and more specific requests, and to establish disclosure deadlines early in the process. We share this view and will elaborate further on this below. With the survey as a backdrop, the stage was set for a panel discussion moderated by Mikal Brøndmo (Haavind). The panel showcased a Nordic perspective with Henriette Gernaa (Gorrissen Federspiel), Christian Lund (the Norwegian Supreme Court), Filippa Exelin (White & Case LLP) and Pontus Ewerlöf (Snellman) as participants. The panellists shared their views on whether the available tools in international arbitration provide sufficient efficiency and potential steps forward. Demonstrating how their respective countries dealt with such matters gave an insightful take on the topic.
In short, we have particularly noted the following findings from the survey:
- The rules or guidelines for obtaining evidence in international arbitration generally encourage more frontloading than in ordinary court proceedings (Question no. 1)
- IBA Rules on the Taking of Evidence (2020) and the Redfern Schedule are frequently used and promote a more efficient process (Questions no. 3, 4 and 7)
- Assistance from the ordinary courts is reported in a fair number of instances as a remedy for a party’s lack of adherence to the arbitration tribunal’s order to present evidence (Question no. 9)
Against this backdrop, we will in in the following highlight three features we consider important for ensuring a transparent, effective and fair handling of evidence in international arbitration:
Implementation of evidence-finding rules
Unlike ordinary court proceedings governed by rules and regulations set out in procedural codes, questions concerning evidence finding are generally subject to the parties’ autonomy (i.e. the arbitration agreement) and the tribunal’s discretion. Rules regarding disclosure and related matters are scarcely addressed in the Norwegian Arbitration Act – where section 28 merely states that it is up to the parties to present evidence to the tribunal, and that the tribunal has the authority to exclude evidence considered irrelevant.
Even though the lack of regulations may offer valuable flexibility for the parties, we often see that evidence-related issues arise during arbitration proceedings and can become causes of disagreement. This is further amplified by the fact that parties from different jurisdictions may carry with them varying traditions. Such procedural disputes may hinder an effective process if not clarified.
For these reasons, we believe that establishing clear regulations on document production is important for ensuring a smooth process. Such regulations are partly addressed in the various institutional rules; see for instance the ICC rules section 25 and NOMA rules section 24, which state that the tribunal may be authorised to impose disclosure requirements on the parties.
The natural point to address this in more detail is in the first case management meeting. In addition to e.g. setting deadlines (see below), it should be considered to record in the PO 1 that the arbitral tribunal may seek guidance in the IBA Rules on the Taking of Evidence in International Arbitration. The IBA rules are uniform rules designed to accommodate arbitration with parties from different legal traditions. The rules set out more detailed instructions, for instance on requests for documents, witness statements, the use of expert witnesses, the tribunal’s competence to set deadlines for submissions as well as principles of admissibility and relevance of evidence.
Ensure frontloading by setting deadlines for submissions early in the process
One feature repeatedly emphasised during the panel discussion was the importance of setting early deadlines for evidence-related matters. The practice of introducing new documents late in the process – whether intentionally or not – was pointed out as a major obstacle to a smooth process.
To avoid this, we recommend the parties and the tribunal to establish the applicable rules for evidence-related matters early in the process, and preferably soon after the submission of the statement of claim and defence. By this stage, both factual and legal issues will have become more apparent. Typically, such matters can be addressed during the Case Management Conference and included in the PO1, see for instance the NOMA’s CMC-Matrix section 2.1.
An efficient approach is to establish deadlines for requests and submissions. In this way, the parties are more likely to adhere to the agreed dates, knowing they may invoke this the other way around. Additionally, this contributes to frontloading, as the parties gain a broader understanding of the claims and the relevant documentation early in the process. And, in case of non-compliance, there may still be time to involve the ordinary courts to get the necessary force behind an order to produce evidence.
The ordinary courts should be used (more) to force adherence to the tribunal’s evidence orders
A sticky point in some arbitration proceedings is the following:
A party chooses to disobey an order to produce evidence – an action presumably based on a calculated litigation risk assessment that the violation will be beneficial to the outcome.
Faced with such a situation, an arbitration tribunal has no direct powers to force the non-compliant party to comply with the order. Thus, the tribunal is left with two potential “indirect punishments”: Let the violation count negatively in the tribunal’s assessment of the evidence actually submitted and/or let the violation influence the cost ruling. Both indirect remedies are in our view highly unsatisfactory.
First and foremost because the violating party may end up winning the case by hiding the smoking gun. As the tribunal will not know what evidence has been kept from them, it is cognitively “impossible” to know how much indirect punishment it should impose in the assessment of the evidence produced (what you don’t know – you don’t know). This is one of the reasons why section 16-7 of the Norwegian Dispute Act has the following strict rule: If a party does not produce the evidence it is ordered to submit, the court may issue an order against the non-compliant party stating that failure to comply within a specified time limit shall constitute unlawful absence in the case. There are very few examples of orders given on this basis – as the party met with this “stick” normally chooses to obey.
Secondly, if hiding the smoking gun leads to victory, any party will obviously gladly accept taking a hit in the cost ruling (compared to the alternative of losing and paying all the costs).
At the outset there is nothing to stop the parties from implementing a similar strict rule as in section 16-7 of the Norwegian Dispute Act – either in the arbitration clause or by subsequent agreement at the first case management meeting. However, as there is no culture for implementing such measures in international commercial arbitration, and no arbitration institute (to our knowledge) has implemented such a rule, we advocate that the ordinary courts should be used as much as possible to ultimately force adherence to the tribunal’s orders to produce evidence.
Section 30 of the Norwegian Arbitration Act (2004) reads as follows:
The arbitral tribunal or a party with the consent of the arbitral tribunal may ask the court to take testimony from parties and witnesses and take other evidence. The arbitral tribunal shall be given reasonable advance notice of the taking of evidence. The arbitrators are entitled to be present and to ask questions.
We will not go into the details, and the potential limitations in international arbitration, of the use of this “opening” to get assistance from the ordinary courts. However, at the outset the arbitral tribunal, to avoid that a party benefits from withholding potential important evidence, should be positive about giving permission to ask the court for assistance and allow for the necessary postponements of the main hearing to allow the courts to handle the request (and potential appeals). As for the strict rule in section 16-7 of the Norwegian Dispute Act, it will most likely be enough for adherence to a tribunal’s evidence order that there is a “stick” available should a party consider non-compliance to strengthen its chances of winning.
NOMA News
Even if there are some months left of 2025, we dare to announce the biggest NOMA news this year: The parties to the Norwegian Standard Shipbuilding Contract (agreed document) have chosen the NOMA arbitration clause for the updated SHIP25, see NOMA’s report here. This move from ad-hoc arbitration in SHIP 2000 to institutional NOMA arbitration, marks in our view a watershed moment for Norway – where ad-hoc arbitration traditionally has been the preferred choice. We thus believe that, going forward, more parties to other agreed standard contracts will follow the same path.
When taking a closer look at the arbitration clause in SHIP25, it is noteworthy that the parties have chosen to also incorporate NOMA’s Fast Track arbitration for all claims below NOK 5 million (compared to the default amount of USD 250,000 in NOMA’s recommended arbitration clause, see here). In our view, SHIP25’s threshold choice is more in line with what is regarded as a “small claim”, considering the costs involved in pursuing a claim in arbitration.
Based on the above, together with the fact that the NOMA arbitration clause was incorporated into the Nordic Marine Insurance Plan (in 2019) and regular reports and examples of the same for contracts and T/Cs in the maritime industry, NOMA is definitely gaining traction. This is also the “conclusion” in HFW’s 6th edition of Maritime Arbitration in Numbers of 29 September 2025, see here.
“Meanwhile, sector-focused bodies like UNUM Transport Arbitration and Mediation (UNUM) and the Nordic Offshore & Maritime Arbitration Association (NOMA) are gaining traction.”
Further backing for this conclusion, is the news of two recent NOMA awards:
- In July 2025, a Norwegian NOMA award was rendered in a substantial dispute between a shipowner and the Norwegian Shipowners’ Mutual War Risks Insurance Association (DNK) in a war risk case. The background to the case can be found in Gard’s news on the matter here, and Thommessen’s newsletter here. According to information from the parties’ counsel, an anonymised version of both the award and the relevant Procedural Orders will be made public in due course – so look out for reports on these.
- On 5 August 2025 a Danish NOMA award was rendered by a sole arbitrator in a dispute between a bunker trader and a time charterer. The Claimant’s counsel (Hafnia Law Firm) has commented on the award in a recent newsletter found here – highlighting both the time and cost effectiveness of NOMA’s Fast Track Arbitration Rules with the following concluding remark: In international maritime arbitration, obtaining an award within two months from the date of appointment of the sole arbitrator is remarkable. We agree!
What’s On the Agenda
The Faculty of Law in Bergen launches arbitration education open to the public
The Faculty of Law at the University of Bergen has introduced a new advanced elective course, Commercial Dispute Resolution, for students in their final year (5th year) of the law programme (led by Professor Anna Nylund and Assistant Professor Knut Høvik). The course focuses on Norwegian and international arbitration, as well as large-scale commercial litigation before the courts. In addition to lectures and seminars, students meet guest speakers with extensive experience in commercial dispute resolution. The course also includes presentations by leading arbitration institutes and a visit to the dispute resolution department of a major law firm. The course aims to strengthen students’ competence and interest in this field. All lectures are open to the public.
More detailed information can be found here.
Launch of Woldgiftspodden – is there a market for an arbitration podcast?
Wiersholm believe the answer is “yes” – and that is why we launched one in September 2025. Woldgiftspodden is a new podcast-series to which we plan to invite external guests to discuss current issues in international arbitration. The podcast is led by Christian Hauge and Lisa Haug Andersen. Through both legal insights and practical perspectives, we hope to attract arbitration practitioners and others curious about international arbitration.
In the first episode, we were joined by:
- Knud Jacob Knudsen and Ignazio Azzari Støen – discussing the recent Norwegian Supreme Court decision on arbitrator impartiality (HR-2025-921-A),
- Atle Skaldebø-Rød – presenting, among other things, NOMA’s latest updates to its Best Practice Guidelines and CMC-Matrix and
- Birgitte Hagland – introducing the newly established Norwegian Arbitration Association (NAA) and outlining its mission.
The first episode of Woldgiftspodden can be found here.
Wiersholm further explores confirmation bias in international arbitration
The Norwegian Arbitration Day will be held on 5 February 2026, and for the third consecutive year Wiersholm is hosting a pre-event on the same day. The main theme of the two first events was Group Think and use of Decision Threes. We round off our “Bias Trilogy” with a classic: Confirmation Bias in Arbitration: Hidden danger and strategic opportunity.
Confirmation bias is one of the most well-documented cognitive biases and perhaps the most overlooked in the courtroom. All human beings tend to seek out evidence that supports what we already believe, and lawyers are no exception. Choosing arbitration over settlement carries a risk of a negative outcome: The counsel may have been blind to the weaknesses of their own case and miss the evidence and arguments that could move the tribunal.
At the same time, confirmation bias can be an opportunity. Since judges and arbitrators are influenced by the same psychological mechanisms, litigators who understand these processes can frame their arguments in ways that reinforce the tribunal’s intuitive convictions.
Also, this year Psychologist and Decision-science Researcher Jan-Ole Hesselberg will give the keynote address – followed by a panel discussion. If you want to reserve a seat, please register here.
There are many events to choose from on the international commercial arbitration scene. We recommend considering the following upcoming happenings:
- 30 October 2025: NOMA Day in Helsinki, Finland – registration here
- 17 November 2025: SCC one-day course: Everything you need to know about arbitration, Stockholm, Sweden – programme and registration here.
- 25 November 2025: Introduction to arbitration and international arbitration, held by Stephan L. Jervell and Amund Bjøranger Tørum, Oslo – programme and registration here
- 5 February 2026: Norwegian Arbitration Day – Save the date (and pre-event Wiersholm – registration above)
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