Norwegian Supreme Court Research Articles

Energy (in)justice in the green energy transition. The case of Fosen wind farms in Norway

In 2021, the Norwegian Supreme Court ruled that wind power licences issued in 2010 for two wind farms in the Fosen area near Trondheim violated the cultural rights of the local Sámi herders. The Fosen case is of interest as it demonstrates how policy intervention to honour the human rights of citizens to a healthy environment came into conflict with the indigenous human rights. Our study explores why this wind power project became a policy failure and what the Sámi achieved in terms of green energy justice through their legal and political struggles as well as settlement agreements. The green energy justice framework fails to address longstanding indigenous injustices and inequalities. Hence, it needs to recognise traditional knowledge, assess the historical context of the intervention, and include a veto right to indigenous minorities to ensure that their rights protected by Article 27 of the ICCPR are respected. The policy failure involved opposition among the Sámi herders to the intervention. The failure occurred as politics shaped the decision and decision-making process underestimated the impact on reindeer husbandry and ignored the objections raised by the Sámi herders. The Supreme Court ruling addressed the reasons for the policy failure and strengthened the indigenous dimensions of the green energy justice. The Sámi herders and their supports were unable to mobilise public media support for the removal of the windmills to undo the human rights violation. Hence, the settlement agreements included distributional justice in the form of monetary compensation and the recognition of their need for new land for winter grazing as well as strengthening of their procedural justice with granting of a veto right on future licenses of the two wind farms.

Norway ∙ The Norwegian Supreme Court Overturns the Prohibition of an Acquisition Below the Merger Thresholds in a Digital Market

Norway ∙ The Norwegian Supreme Court Overturns the Prohibition of an Acquisition Below the Merger Thresholds in a Digital Market

Enforcing Constitutional Sustainability Clauses in the Age of the Climate Crisis: Insights from Social Contract Theory on How to Take Account of Future Generations

Abstract Climate change is one of the most alarming events today, which will very likely have devastating effects on a lot of people worldwide. This paper addresses the question as to how constitutional sustainability clauses can be enforced in the age of the climate crisis. It does so by looking into some difficulties of making the notion of future generations operable. First, the paper will briefly analyze two decisions by the Austrian Constitutional Court and the Norwegian Supreme Court, which have both rejected claims based on constitutional sustainability clauses referring to future generations. This is juxtaposed with a recent decision by the Federal Constitutional Court of Germany which invigorated Article 20a of the German Basic Law and thereby also future generations. Second, this paper aims at shedding light on the notion of future generations by looking into philosophical debates on the so-called non-identity problem. The question as to how to include future generations in the social contract and selected philosophical strategies to address it are discussed and introduced to the legal discourse. This seems to be a worthwhile goal as by now several scholars from various disciplines such as geography, political science, and applied ecology have opened up a debate on the role of social contracts concerning climate change. This paper seeks to further the debate by aiming to suggest a connection between philosophical social contract reasoning and constitutional sustainability clauses taking the example of Austria, Norway, and Germany.

The Impact of Female Leadership in Collegial Courts on Time to Render Merits Decisions: Evidence from the Norwegian Supreme Court

What is the effect of gender on the deliberative process of judging? Drawing on previous research on female leaders’ inclination to foster a more inclusive and collaborative decision-making process, we argue that decision making takes more time in a collegial court when female justices preside over decisional panels. Analyzing an original data set on cases decided by the Norwegian Supreme Court between 2008 and 2019, we find that when a woman is the presiding justice, the duration of case disposition time increases. This effect, however, persists for only eight days. Our finding suggests that institutional practices take effect over gendered effects.

In the Best Interest of the Child? Justifying Decisions on Adoption from Care in the Norwegian Supreme Court

Abstract By utilising theories of deliberation and rational argumentation, this article critically analyses the Norwegian Supreme Court’s best interest decisions in four judgments on adoption from care. How does the Supreme Court reason their decisions and are the decisions rational? The findings show that the decisions are reasoned similarly, and conclusions are guided by norms of biology, vulnerability and stability for the child. However, discretion is applied differently across decisions, and the reasoning and balancing of individual arguments vary. The critical evaluation displays weaknesses in all judgments: one important blind spot is the failure to include the child’s views in the decision-making process. The development in terms of delivering rational, well-reasoned and thorough judgments is nonetheless positive. Furthermore, the Supreme Court’s recognition and protection of the child’s de facto family situation correspond to observed developments in the European Court of Human Rights as well as in national state policy on adoption.

The First Climate Judgment before the Norwegian Supreme Court: Aligning Law with Politics

Abstract On 22 December 2020, the Norwegian Supreme Court ruled on its first climate case. It dealt with the claim that petroleum licences, issued by the Norwegian government, violate the ‘right to a healthy environment’ as contained in the Norwegian Constitution. The Court rejected the claim and found that the constitutional protection of the environment applies not as a right but as a substantive limit to governmental action, and only in very limited circumstances. Rather than taking the opportunity to give guidance on this constitutional provision, the Court provided a judgment that aligned law with the current politics in favour of continuous petroleum extraction on Norwegian territory.

Recent Norwegian Supreme Court caselaw on VAT grouping and VAT deduction of transaction costs relatedto the sale and purchase of shares from an EU and a Danish perspective– Part three

Recent Norwegian Supreme Court caselaw on VAT grouping and VAT deduction of transaction costs relatedto the sale and purchase of shares from an EU and a Danish perspective– Part three

The Climate Judgment of the Norwegian Supreme Court: Aligning the Law with Politics

The Norwegian Supreme Court rendered its judgment on 22 December 2020 in its first “climate case”. The Court rejected the claim put forward by several environmental NGOs that petroleum licenses issued by the Norwegian government violate Article 112, paragraph 1, of the Norwegian Constitution which states that “Every person has the right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained. Natural resources shall be managed on the basis of comprehensive long-term considerations which will safeguard this right for future generations as well.” The case provided a unique and timely possibility for the Supreme Court to establish the substantive content of that provision in the light of the global challenge of climate change. Yet, the court decided not to. It found that the constitutional provision applies only in very limited circumstances as a substantive limit to governmental action (or inaction). Foregoing an opportunity to give guidance and content to a “right to a healthy environment”, the court pronounced a backward-looking judgment which was criticized as a “gust from the past”. Issued only 40 days after the hearings, its main purpose appears to hurriedly aligning the law with the politics of continuous, unfettered petroleum extraction. Opponents of the case had argued that asking the Supreme Court to rule on the legality of petroleum licenses, is trespassing the realm of politics, and is not a matter of law. Yet, by aligning the legal content of the Constitution with prevailing politics, the Supreme Court ultimately rendered a highly political decision. This article will first briefly set out the scientific and political background against which the current trend of climate litigation takes place. It then moves on to the facts of the case, describes its journey through the Norwegian judicial system, and presents and reflects over the judgment by the Supreme Court of Norway.

A High Court Plays the Accordion: Validating Ex Ante Case Complexity on Oral Arguments

While high courts with fixed time for oral arguments deprive researchers of the opportunity to extract temporal variance, courts that apply the “accordion model” institutional design and adjust the time for oral arguments according to the perceived complexity of a case are a boon for research that seeks to validate case complexity well ahead of the courts’ opinion writing. We analyze an original data set of all 1,402 merits decisions of the Norwegian Supreme Court from 2008 to 2018 where the justices set time for oral arguments to accommodate the anticipated difficulty of the case. Our validation model empirically tests whether and how attributes of a case associated with ex ante complexity are linked with time allocated for oral arguments. Cases that deal with international law and civil law, have several legal players, are cross-appeals from lower courts are indicative of greater case complexity. We argue that these results speak powerfully to the use of case attributes and/or the time reserved for oral arguments as ex ante measures of case complexity. To enhance the external validity of our findings, future studies should examine whether these results are confirmed in high courts with similar institutional design for oral arguments. Subsequent analyses should also test the degree to which complex cases and/or time for oral arguments have predictive validity on more divergent opinions among the justices and on the time courts and justices need to render a final opinion.

From Backlogs to Quality Assurance. The Development of Law Clerk Units at Norwegian Courts

The <em>Consultative Council</em> of European Judges (CCJE) approves of the role of law clerks assisting judges in their decision making but cautions against clerks replacing judges. In this article we put CCJE’s caution to a test and study law clerks at the Norwegian Supreme Court and the Borgarting and the Gulating courts of appeal, the country’s two largest courts of appeal. The general pattern for all three courts is that the pretext for hiring clerks changes from backlog problems to quality assurance, that clerks become organized in separate units, that the number of tasks performed by clerks increases, and that women constitute an outsized presence in the clerk units. The growth in clerks contributes to institutionalizing courts. We conclude that clerks perform tasks of the judges, that to some degree they replace judges, that clerks influence decision making, but that clerks have not become judges or make final decisions.

Recent Norwegian Supreme Court caselaw on VAT grouping and VAT deduction of transaction costs relatedto the sale and purchase of shares from an EU and a Danish perspective– Part two

Recent Norwegian Supreme Court caselaw on VAT grouping and VAT deduction of transaction costs relatedto the sale and purchase of shares from an EU and a Danish perspective– Part two

The Government Deference Dimension of Judicial Decision Making: Evidence from the Supreme Court of Norway

Past research has revealed conflicting findings regarding the degree to which judges on European apex courts enact their policy preferences or instead disagree on the basis of divergent legal views. We investigate disagreement between judges on the Norwegian Supreme Court between 1996 and 2016. During this period, the court dealt with a greater volume of policy‐relevant cases than previously. The method of appointment to the court was also changed to a judicial appointments commission. We analyse non‐unanimous cases using item response theory models. We find that judges are not divided along left–right lines but instead disagree about the appropriate degree of deference to give to public authorities. There is no significant association between the appointing government and judges' ideal points either before or after the reform to appointments. Judges who were formerly academics are however much less deferential than career judges or judges who were previously lawyers in private practice.

Recent Norwegian Supreme Court caselaw on VAT grouping and VAT deduction of transaction costs relatedto the sale and purchase of shares from an EU and a Danish perspective– Part one

Recent Norwegian Supreme Court caselaw on VAT grouping and VAT deduction of transaction costs relatedto the sale and purchase of shares from an EU and a Danish perspective– Part one

Snow Crab in the Barents Sea: Managing a Non-native Species in Disputed Waters

The introduction of a new species to the Barents Sea raises questions as to the rights and duties of states under the law of the sea to exploit, manage and conserve the species. This paper discusses three of them. The first question is whether the snow crab qualifies as a sedentary species. The entitlements and competence of states in respect of living marine resources depend on the location and the characteristics of the species. If it qualifies as a sedentary species under the law of the sea, it is subject to the sovereign rights of the coastal States. Otherwise, it is subject to the sovereign right of the coastal States as well as the freedom of fishing, dependent on its distribution. The second question is what, if any, obligations Norway as a coastal State has in respect of conservation and management of the snow crab and how Norway is complying with these obligations. This includes a discussion of whether the snow crab qualifies as an introduced, alien species and the possible implications for the obligations of the coastal State. The area of distribution of the snow crab includes waters within 200 nautical miles off Svalbard, raising a third question as to the implications of the 1920 Treaty concerning Spitsbergen (Svalbard Treaty) and in particular whether fishing vessels of Contracting parties have the right to participate in the harvest on an equal footing with Norwegian vessels. The Norwegian Snow Crab Regulations effectively reserves the harvest of snow crab for Norwegian fishing vessels. The paper discusses the implications of a recent decision by the Norwegian Supreme Court on dismissal of an appeal by a Latvian vessel and its captain convicted for illegal harvest of snow crab within 200 nautical miles off Svalbard.

Exciting Times, but Business as Usual for the Judges

In this article, the author examines how the rule of law affects the Norges Høyesterett (Norwegian Supreme Court) in deciding tax cases with reference to Norwegian, and EU and international, law, as well as the pronouncements of the OECD.

Don’t Look Now

Don’t Look Now

Forced biometric authentication – on a recent amendment in the Norwegian Code of Criminal Procedure

In June 2017 the Norwegian Parliament approved an amendment to section 199 a of the Norwegian Code of Criminal Procedure, allowing the Norwegian police to order anyone dealing with a data-processing system to open it by biometric authentication and to perform the authentication by use of force should the person refuse to comply with the order. The amendment is the result of a practical situation in which the Norwegian police was, as on many previous occasions, outplayed by technology. In this case, the police had seized the mobile telephone of a person suspected of gross violence, because the police believed the telephone to contain video recordings of the incident, however the suspect refused to provide neither the code or his fingerprint, either of which was necessary to obtain access to the content of the device. After three rounds of court proceedings, the Norwegian Supreme Court decided unanimously that there was no legal basis in Norwegian legislation according to which the suspect could be forced to cooperate (the Biometric case). The Norwegian government, acting with unusual swiftness, distributed a consultative paper less than four months later, followed by a legislative proposal, which was soon after adopted without amendments. In this article Ingvild Bruce (a research fellow at the Institute of Public and International Law, University of Oslo) outlines briefly the lacunae in Norwegian legislation that caused the need for the amendment; sets out the provision that permits the police to obtain access to biometric authentication by the use of force; the material and procedural conditions that apply, and finally presents some of the objections that were put forward against the proposal and subsequent amendment.Index words: Norway; biometric authentication; criminal law

Supreme Court Justices’ Economic Behaviour: A Multilevel Model Analysis

Supreme Court justices are overlooked, but important, national policy‐making players who render final and consequential decisions in cases on economic conflicts. The research question asks what forces explain the decisional behaviour of Supreme Court justices in economic rights cases between a private and a public party. Theoretically, the decisional behaviour of an individual justice is a function of his or her notion as to what makes ‘good’ law, pursued in a cultural‐collegial setting that is oriented by majoritarian requirements, while constrained by the legal nature of the case being considered. Empirically, all economic decisions made by Norwegian Supreme Court justices in five‐justice panels from 1963 to 2012 are analyzed. Our multilevel model demonstrates that individual, collegial and case‐level forces all contribute to explain the justices’ votes. These results suggest that case‐related dynamics, such as who the plaintiff is or the amount of disagreement between justices, matter, but also that ideology – via appointment mechanisms – matters when a nation's high court justices decide economic cases. Understanding the foundational assumptions and the institutional procedures is vital when transporting judicial behaviour models across polities.

Use of Secret Comparables Condoned by Norwegian Supreme Court

In 2015, the Norwegian Supreme Court, for the first time ever, heard a case involving the use by the tax authorities of so-called secret comparables in transfer pricing. In this article, the authors consider the decision and its potential future impact.

The Norwegian Supreme Court and Strasbourg: The Case ofLillo-Stenberg and Sæther v. Norway

This article attempts to give a brief overview as to the interplay between the Norwegian Supreme Court and the European Court of Human Rights in Strasbourg. I will do so partly on a general footing and partly connected to a couple of specific cases. In particular, I will comment on the 16 January 2014 judgment from the Strasbourg Court in the Case ofLillo-Stenberg and Sæther v. Norway.This case involved an alleged violation of the right to privacy according to Article 8 of the European Convention on Human Rights (ECHR), by publishing pictures from the wedding of a well-known couple-both performing artists-in a weekly magazine, without their consent.