International Commercial Arbitration Q4 2025

This update explores trends and developments in international commercial arbitration from a Norwegian perspective – together with our views.

On the backdrop of the World Justice Project’s Rule of Law Index for 2025 where the four Scandinavian countries rank on top, and a recent statement from the President of the Danish Institute of Arbitration (DIA), we will provide some thoughts on whether the choice of seat for the arbitration matter.

We will also summarise news and highlights from Q4 2025 and give a sneak-peek on what the arbitration year 2026 can bring.

Does the choice of seat matter?

Background

Under the heading «Why Choose a Danish Seat of Arbitration», Håkun Djurhuus, President of the Danish Arbitration Institute (DIA), stated the following in DIA’s newsletter 18 November 2025:

«Choosing the seat of arbitration is a strategic decision influenced by many elements. In my experience, Denmark’s continued top ranking in World Justice Project’s (WJP) Rule of Law Index – holding the number one position since 2015 – is not only underestimated, but in fact is among the strongest reasons why parties should select Denmark as a place of arbitration, especially when no one can predict what will happen in the world, either in the short or the long term».

In the Rule of Law Index from 2025 mentioned in the quote above, the four Nordic countries, Denmark, Norway, Finland and Sweden, rank on top (in that order). Popular arbitration seats such as the UK and Singapore rank 14^th and 16^th respectively.

Considering that an agreement to arbitrate is a waiver of the parties’ right to have their dispute settled by the ordinary courts, we ask:

Does the choice of seat of the arbitration matter if a dispute arises?

In short, we support the DIA President’s statement. The choice of seat may matter for the parties. Below we will provide our thoughts and view on this (from a Norwegian perspective).

Overview – lex arbitri

As our readers will know, an agreement to arbitrate is a waiver of the parties’ right to have their dispute decided by the ordinary courts. The ordinary court is therefore at the outset obliged to dismiss any legal proceedings relating to matters that are subject to arbitration. However, the agreed seat of arbitration determines which country’s legal system and arbitration law apply – lex arbitri. If Norway is the chosen seat, the arbitration is governed by the Norwegian Arbitration Act of 14 May 2004 (the “Norwegian Arbitration Act”). Like the Danish arbitration act, the Norwegian Arbitration Act is based on the UNCITRAL Model Law on International Commercial Arbitration (1985).

Considering the above, and that arbitration is primarily chosen by professional legal entities engaged in commercial activities with each other, one may argue that ordinary courts and arbitration are two separate dispute resolution institutions without any points of contact. Consequently, the choice of arbitration seat is arguably not that important. However, in our view, this is not correct. Through the choice of Norway as the seat of arbitration, the parties have accepted the overall framework of the Norwegian Arbitration Act and its mandatory legal certainty guarantees. Furthermore, the Norwegian courts may play an important role in the following three dimensions:

Before the arbitration: Potential assistance establishing an impartial, independent and competent arbitral tribunal and dismissal of lawsuits subject to arbitration

During the arbitration: Potential assistance regarding access to evidence not produced voluntarily and decisions on interim relief and arrest

After the arbitration: Ruling on potential claims for setting aside an arbitral award as invalid (and potential recognition and enforcement)

In other words: The ordinary courts and arbitration coexist to achieve the Norwegian state’s desire for an effective, fair and attractive «arbitration space». At the intersection of their respective jurisdictions, challenging boundaries may arise. Exploring these boundaries would go far beyond the framework of this newsletter. However, in the following we will provide a high-level overview to illustrate the main point: It is important to choose a seat which respects the rule of law.

Dimension 1: The potential role of the courts in establishing an impartial, independent and competent arbitration tribunal – including the dismissal of lawsuits subject to arbitration

First, the ordinary courts’ handling of actions (allegedly) subject to arbitration is important. Pursuant to section 7 of the Norwegian Arbitration Act, the court is obliged to dismiss any legal proceedings relating to matters that are subject to arbitration. The Norwegian Supreme Court has recently clarified how early a party must invoke an arbitration agreement in order for the courts to be obliged to dismiss the action, see HR-2023-2055-A (see further comments on this judgment in our Q4 2023 Newsletter) Moreover, the judgments in the Skaugen-case provide clarification of what is covered by an arbitration clause, see HR-2017-1932-A.

Furthermore, there may be questions relating to the the transfer of an arbitration agreement upon transfer of the legal relationship it covers (section 10 of the Norwegian Arbitration Act). Issues concerning the binding nature of arbitration agreements for third parties, for example in the case of recourse, were dealt with in the Supreme Court ruling HR-2023-573-A. The subjective scope of an arbitration agreement is further analysed in Voldgiftsavtalens subjektive grenser | Tidsskrift for forretningsjus (commented on in our Q4 2024 Newsletter).

Second, the ordinary courts may play a potential role in establishing an impartial, independent and competent arbitral tribunal – especially in ad-hoc arbitrations.

This is a large and complex issue, particularly in situations where the courts are asked to decide whether an appointed arbitrator must step down due to a lack of impartiality and/or independence, cf. sections 15 to 17 of the Norwegian Arbitration Act. This topic touches on international best practice (including the IBA’s guidelines on this subject) with regard to the impartiality of arbitrators, which is a fundamental prerequisite for the legitimacy of the arbitration institution in a state governed by the rule of law. On 19 May 2025, the Norwegian Supreme Court handed down its first-ever judgment (HR-2025-921-A) concerning a challenge to an arbitration award on the grounds that the Arbitration Act’s standard of independence and impartiality was not satisfied. The Supreme Court confirmed the importance of international harmonisation and international sources to the interpretation of the Norwegian Arbitration Act, which promotes transparency and predictability to the benefit of all parties. We have previously commented on this judgment in our Q2 2025 Newsletter and it was a topic for discussion in Woldgiftspodden Episode no. 1. The judgment has also been subject to an article published in the Journal of International Arbitration, Volume 42, Issue 6 (2025) pp. 791 – 798 (see here) and commented by Giuditta Cordero-Moss in Nytt i privatretten, 2025 (see here).

The threshold for the courts to intervene and remove an arbitrator is high, but it is an important guarantee of legal certainty to ensure an effective, fair and attractive «arbitration space».

Dimension 2: The role of the courts in the conduct of case preparation – including access to provisional relief and arrest

In dimension 2, the ordinary courts may play a role in connection with the conduct of preparatory proceedings in arbitration.

The first potential role and competence for the ordinary court in this dimension is to secure evidence «on behalf of the arbitral tribunal» (section 30 of the Norwegian Arbitration Act). At the outset, this rule provides broad access to assistance from the courts to gain access to presumably relevant evidence (both documentary and witness evidence) that a party does not offer voluntarily. Over the years, this rule has been increasingly applied in practice. The latest examples are found in two decisions from Gulating Court of Appeal of 17 September 2025 (LG-2025-28664 and LG-2025-53532). You can learn more about this development in the discussion between Ola Nisja and Stephan L. Jervell in Woldgiftspodden Episode 2 .

The second main role in this dimension is the court’s authority to make decisions on provisional security and arrest in legal matters that are subject to arbitration. This is a very practical and important supplement to arbitration. The arbitral tribunal may have jurisdiction to make interim decisions (section 19 of the Norwegian Arbitration Act), but is in practice reluctant to use it in fear of encroaching the evaluation of the subject-matter of the dispute.

In a decision by Gulating Court of Appeal on 31 October 2023 (LG-2023-116577), it was concluded that the courts should be reluctant to take a preliminary position on issues that will later be decided by an arbitral tribunal – in order to avoid «interfering with the form of proceedings chosen by the parties«. Even if this level of reluctance can be debated, and the question has not yet been clarified by the Norwegian Supreme Court, the decision shows the «respect» the ordinary courts have for the parties’ choice of jurisdiction for the main claim.

Dimension 3: The role of the courts after an arbitral award has been rendered – including the consideration of claims for setting aside an arbitral award as invalid

The perhaps most potent role of the ordinary courts is found in dimension 3.

First, the courts have jurisdiction to set aside a final arbitral award as wholly or partially invalid. The Norwegian Arbitration Act does not allow any substantive review of the arbitral tribunal’s conclusions – unlike English law, which allows appeals on certain grounds due to incorrect application of the law. Under Norwegian law, the courts may only set aside an arbitral award as invalid if one of the (limited) grounds for invalidity listed in section 43 of the Norwegian Arbitration Act is fulfilled. These grounds are a) lack of jurisdiction, b) lack of opportunity to defend itself/present its case, c) the award falls outside the tribunal’s jurisdiction, d) the composition of the tribunal was incorrect or e) the arbitral procedure was contrary to law or the agreement of the parties and likely impacted the decision.

If an arbitral award is set aside, this can have major consequences for the legal relationship between the parties. It is therefore important that the judges who decide on claims of alleged invalidity have sufficient knowledge and expertise in arbitration, including international best practice. On the importance of international best practice in the application of the law, see HR-2017-1932-A (Skaugen), paragraphs 87 and 115.

Historically, very few invalidity actions have been brought in Norway, but this number has increased in recent years. Shetelig and Skaldebø-Rød’s article «Review of arbitration awards in Norway – where do we stand now», Lov og Rett, 2024/1, provides, among other things, an overview of the number of invalidity proceedings before Norwegian courts in the period 2014–2022. Based on their unofficial research, nine invalidity proceedings were brought during the period, two of which were wholly or partially successful.

Case law shows that the threshold for succeeding in an invalidity action is high, and that the Norwegian courts deal with them relatively quickly, see e.g. the survey «Challenging Arbitral Awards in the Nordics 2024» p. 23 (link to the report here).

Second, the ordinary courts play a role in the recognition and enforcement of a final arbitration award. As this role is not directly linked to the choice of seat, we will not address it further here.

Summing up

As our high-level overview shows, both the quality and speed of the ordinary courts matter if the need for them arises before, during or after the arbitration process. By having Norway as seat of the arbitration, the parties will get access to courts that are respecting both the rule of law and the parties’ agreement to arbitrate. The same will also be the case for the other Scandinavian countries. «Stealing» some of the words of Håkon Djurhus, President of the DIA:

In times when no one can predict what will happen in the world, either in the short or the long term – it is important to consider the choice of seat of the arbitration.

NAA News

In our Q3 2025 newsletter, we reported from the Grand Opening of the Norwegian Arbitration Association’s (NAA) and concluded that the establishment of the NAA is an important step in the right direction in the development of Norwegian (and Nordic) commercial arbitration. Going forward, we will monitor and report relevant news in connection with NAA’s work.

First, Supreme Court Justice Ingvald Falch’s opening speech at the Grand Opening on 25 September 2025 has now been published in Tidsskrift for forretningsjus 5 November 2025. The article is available here.

Second, NAA has a web-page – found here – with information on the board and members of the advisory board.

Third, we highlight that NAA’s chair, professor Birgitte Hagland, was interviewed about the establishment of the association in DIA’s newsletter 18 November 2025. The interview can be found here.

Fourth, NAA’s work to compile and publish Norwegian arbitration awards has been kicked off. You can learn more about this work in the conversation we had with Knut Høivik and Norwegian Supreme Court Judge Borgar Høgetveit Berg in Woldgiftspodden Episode 2 – which can be found here .

Fifth, NAA now plays an important role in organising the Norwegian Arbitration Day (together with Scandinavian Institute of Maritime Law and Oslo Centre for Commercial Law). The programme for this year’s event (5 February 2026) has now been released. This year, the focus is on challenges to arbitral awards from the court’s perspective, including issues relating to arbitration, sanctions and ordre public. More details on the programme are available here. (And on this note, see below under «What’s on the Agenda» regarding Wiersholm’s pre-event to NAD)

NOMA News

In our Q3 2025 newsletter , we also commented on a Danish NOMA award of 5 August 2025. This award has now been published in anonymised version, which can be found here. It is noteworthy that the sole arbitrator in this case, Lotte Wetterling, commented as follows on LinkedIn:

NOMA’s arbitration rules are a pleasure to work with and reflect the essence of Nordic efficiency and flexibility in dispute resolution.

The third NOMA Day was held in Helsinki 30 October 2025 – under the heading «NOMA fit for maritime cluster». According to an update on LinkedIn, Adrian Moylan’s (Gard AS) talk on «Arbitration clauses from an insurer’s perspective» gave an interesting perspective on the development of LMAA arbitration: Initially LMAA arbitration worked very well – achieving swift commercial decisions from commercial people with market knowledge and commercial common sense. However, in Mr. Moylan’s view, this changed after the implementation of the 1996 UK Arbitration Act, which paved the way for formal court style processes, with lawyers taking over the presentation of arguments and making the decisions (awards). Over time, LMAA arbitration has, in his view, become slow, unwieldy, ageing and very expensive and thus the NOMA initiative – being shorter and less expensive – was very welcome , see more here .

After the NOMA Day, we had the opportunity to speak with Mathias Steinø about why most companies want the dispute resolved as close to «home» as possible. You can read a summary of Mathias’ views here and listen to the conversation on Woldgiftspodden Episode 2 (see below).

We also note that NOMA’s Standing Revision Committee has appointed new members, see here.

What’s On the Agenda

Joint appointment – a Norwegian export article?

We have previously highlighted the Norwegian rule on joint appointment to secure an independent and impartial arbitral tribunal, and in our Q4 2024 Newsletter we argued:

«[…], the joint-appointment rule should in our view become the starting point in the rules of all the other Nordic arbitration institutions. We see no downside of having this as the default rule as parties may at any time choose to opt for the current standard appointment rule.»

Following this, NOMA expressed a similar view in the article «NOMA – Providing Solution Based Arbitration Across the Nordics», published in the e-book «Nordic Commercial Arbitration Forum 2025 – A Strategic Choice for Business», see here.

Taking into account that NOMA has already incorporated the rule on joint appointment as the starting point in articles 6 (1) and 7 (1)) of the NOMA Arbitration Rules 2024, this position is expected. However, the support for this rule increases in strength:

In the article «The Case for Joint Appointment of the Tribunal – A Norwegian Business Perspective», Knut Høivik (i) makes the case for joint appointment from a Norwegian business perspective, (ii) supports that the rule is “exported” and developed into a competitive advantage for Nordic arbitration in the international arena and (iii) elaborates on the following main supporting arguments:

It ensures that the composition of the tribunal remains under the shared control of the parties
The parties control the crucial authority to appoint the presiding arbitrator
As no direct “link” exists between any individual arbitrator and a specific party, joint appointment reduces the risk of bias that is often associated with party-appointed arbitrators

Lastly, but very noteworthy, Wikborg & Rein Partner Marie Nesvik and Specialist Counsel Anne-Karin Nesdam have written a chapter in the Stockholm Arbitration Law Review, titled «Unilateral Party-Appointment and Affiliation Bias: Is Joint Appointment the Solution?», see here . Affiliation bias is the arbitrator bias caused by implicit preferences for the appointing party. The article discusses this bias in arbitration, among other things by pointing to advantages and disadvantages, suggesting alternative methods for appointing arbitrators. In their concluding remarks, the authors state e.g. the following:

«These characteristics [the legal community being fairly small and easy to oversee – as well as generally characterized by trust and pragmatism] are something the Nordic countries share, and we would therefore expect the shared characteristics of the Nordic arbitration environments to be conducive to making joint-party appointment a viable and valuable method.»

Based on this, it will be exciting to see if there will be any alignment among the Nordic arbitration institutions regarding the joint-appointment rule.

Arbitration and EU law – a good fit?

For readers familiar with both arbitration and EU/EEA law, it will be well known that arbitration is only marginally covered by EU legislation. However, a working group from Sorbonne University in Paris has addressed the question of whether this distinction should be maintained in the future.

In its report, Towards an EU Law on International Arbitration, published in April 2025, the group explores the possibility of bringing arbitration within the scope of the Brussels I Recast Regulation (Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters). Among other things, the report proposes the introduction of a new Article 25, granting exclusive jurisdiction to the courts of the seat of arbitration to render decisions on the constitution of the tribunal (unless otherwise agreed between the parties), as well as on the annulment, recognition or enforcement of the arbitration agreement or the award. Often referred to as a «European passport», such a decision would then have to be recognised by the other member states.

The recommendations have recently been discussed in the article European Harmony in the latest issue of Commercial Dispute Resolution – Arbitration around the world, where they received positive feedback. We will continue to follow the development of this proposal.

Woldgiftspodden Episode no. 2 is out

Woldgiftspodden episode 2 is now out. As already mentioned, we speak with Mathias Steinø in Finland in the wake of the third NOMA day in Helsinki. We discuss, among other things, why most parties benefit from having their arbitration cases as close to «home» as possible, why habit is not always a good strategy when choosing the seat of arbitration, and we take a closer look at what Nordic pragmatic self-confidence means.

Next, we pick up the thread from the opening of the Norwegian Arbitration Association (NAA) and discuss with Borgar Høgetveit Berg and Knut Høivik about how the NAA intends to proceed to get more Norwegian arbitration awards published, why this is important, and what can or should be done if they encounter closed doors.

We round off with a discussion with Ola Nisja and Stephan L. Jervell about access to evidence in arbitration. Here, they discuss, among other things, the (negative) developments regarding the scope of evidence access proceedings in arbitration, what can or should be done in this regard, and whether the introduction of deadline provisions modeled after section 16-7 of the Norwegian Dispute Act may be relevant in arbitration.

Link to the full episode can be found here .

Wiersholm’s pre-event to the Norwegian Arbitration Day 5 February 2026

For the third consecutive year, Wiersholm is hosting a pre-event to the Norwegian Arbitration Day on 5 February 2026 at 11:30. The main themes of the first two events were groupthink and the 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 fail to identify the evidence and arguments that could move the tribunal.

At the same time, confirmation bias can also present 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 align with and reinforce the tribunal’s intuitive convictions.

Also, this year, psychologist and decision-science researcher Jan-Ole Hesselberg will deliver the keynote address, followed by a panel discussion with the following panellists:

Lotte Eskesen, Partner Gorrissen Federspiel
Hans-Patrick Schroeder, Partner Freshfield
Anne-Maria Tamminen, Managing Partner Hannes Snellman
Johnny Herre, Independent Arbitrator and former Supreme Court Judge
Morten Goller, Partner Wiersholm

If you wish to attend, please register here.

There are many events to choose from on the international commercial arbitration scene. We recommend considering the following upcoming happenings:

5 February 2026: Norwegian Arbitration Day 14:30 – 19:00 (registration here) – with pre-events at Wiersholm 11:30 – 14:15 (registration here) and at BAHR 09:00 – 12:30 (registration here)