	Gathering Evidence in Aid of Foreign Litigation Guide
	Norway
	(Europe) Firm Advokatfirmaet Thommessen AS Updated 23 Mar 2022
Does your jurisdiction permit gathering evidence in aid of foreign litigation?	Yes. The Norwegian authorities may comply with requests from foreign authorities regarding the gathering evidence in aid of foreign litigation regardless of whether there exists an international convention or contractual obligation between Norway and the requesting state. If such international convention/contractual obligation exists, the Norwegian courts are obliged under international law to comply with the request, provided that the conditions of the convention or agreement are met and that the implementation of the request is not in conflict with Norwegian law. Legal provisions for court requests in aid of foreign litigation follow from Section 46 of the Norwegian Courts of Justice Act. Section 46 applies to court requests from foreign authorities, both in civil disputes and in criminal cases.
Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes.	Yes, Norway is a party to the Hague Evidence Convention of 18 March 1970 (Taking of Evidence Abroad in Civil or Commercial Matters). Norway is also party to the following agreements/conventions in regard to requirements for obtaining evidence in aid of foreign litigation: Agreement between Norway and the United Kingdom regarding legal proceedings in civil and commercial matters of 30 January 1931 The Hague Convention on Civil Procedure of 1 March 1954 The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 15 November 1965 The Agreement between the Nordic countries on mutual legal aid of 26 April 1974 The Supplementary Agreement between Germany and Norway of 17 June 1977 to the Hague Convention The Supplementary Agreement between Austria and Norway of 21 May 1984 to the Hague Convention
Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests.	A request for gathering evidence in aid of foreign litigation that is not covered by an agreement with a foreign state should be filed in accordance with Section 46 of the Courts of Justice Act. The request should be sent through the Ministry of Justice unless otherwise agreed with the foreign state. The Ministry of Justice appoints the competent District Court to respond. Alternatively, the King (i.e. the government) may decide that evidence requests may be sent directly from the foreign authority to the local courts, cf. Section 46 fourth paragraph of the Courts of Justice Act. The receiving District Court shall assess whether it is competent to comply with the request, cf. Section 46 second paragraph. The agreements/conventions referred to above set out the following alternative procedures apply for making requests for gathering of evidence: The Hague Convention on Civil Procedure of 1 March 1954: Requests for gathering evidence shall be transmitted by the consul of the requesting state to the local district court in the court district where the person to whom the request applies is present, cf. Article 9. The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 15 November 1965: Requests for gathering evidence shall be transmitted directly from the competent authority of the requesting state to the Norwegian Ministry of Justice, cf. Article 2. The Hague Evidence Convention of 18 March 1970: Requests for gathering evidence shall be transmitted directly from the competent authority of the requesting state to the Norwegian Ministry of Justice, cf. Article 2 and section 1 of Norway's declaration to the convention. The Agreement between the Nordic countries on mutual legal aid of 26 April 1974: Requests for gathering evidence may be transmitted directly to the local district courts of Norway. The Supplementary Agreement between Germany and Norway of 17 June 1977: Requests for gathering evidence may be transmitted directly to the local district courts of Norway, cf. Article 1 and Article 5. Agreement between Norway and the United Kingdom of 30 January 1931: Requests from the United Kingdom may be transmitted directly from a Diplomatic or Consular Officer of the United Kingdom to the local district courts of Norway.
What types of information can be sought? Requests for Documents? Written questions? Depositions?	Section 46 of the Courts of Justice Act applies to all types of court requests, including requests for taking evidence in Norwegian courts, requests for documents and requests for service of foreign documents. However, Section 46 does not apply to the extradition of people who have been sentenced abroad or are being prosecuted, or the use of coercive measures under the Criminal Procedure Act (inter alia, concealed video surveillance and technological tracking, audio surveillance and other sorts of communication control). To take witness testimony, the witness will typically be subpoenaed to give testimony directly before the court. A witness can also be compelled to give access to certain documents/materials. If evidence is requested to be taken in a particular way, the request will usually be granted if not in violation of Norwegian law. Depositions are allowed under Norwegian law but are rarely used.
Who bears the burden of showing whether any privileges apply?	The burden lies on the party asserting that the relevant privileges apply.
Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending?	No, there are no requirements under Norwegian law for the request to demonstrate that the information sought is allowable in itself in the foreign jurisdiction in which the action is pending. However, requests for gathering evidence shall state the requesting authority, the nature of the case and the parties' full names and addresses. Furthermore, the request shall include a description of the factual circumstances that the request concerns. The court must further investigate whether the request is sent by a competent foreign authority and whether it is submitted in a language accepted by Norway.
If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.)	As a main rule, witnesses shall give oral evidence directly before the court of deposition. However, the Norwegian Dispute Act Section 27-4 allows depositions to be conducted remotely e.g. if non-remotely securing of the evidence would otherwise lead to the court case being postponed. The court decides at its own discretion.
Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings?	The court is not obliged to carry out the taking of evidence for the purpose of so-called "pre-trial discovery of documents", known from the common law system, cf. Article 23 of the Hague Evidence Convention of 18 March 1970. Norway has made a declaration to this provision specifying the kind of requests that will not be complied with. The statement reads: "The declaration made by the Kingdom of Norway in accordance with Article 23 concerning "Letters of Request issued for the purpose of obtaining pre-trial discovery of documents" shall apply only to Letters of Request which require a person to state what documents relevant to the proceedings to which the Letter of Request relates, are, or have been, in his possession, other than particular documents specified in the Letter of Request; or to produce any documents other than particular documents which are specified in the Letter of Request, and which are likely to be in his possession." Consequently, the requested documents must be sufficiently specified to be submitted pursuant to Norwegian law. For example, requests that require all relevant documents or e-mails to be submitted can be rejected. The court may also demand the requesting authority to specify in more detail which documents are required to be submitted.
May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice?	Yes, citizens residing in Norway may voluntarily give evidence in a foreign proceeding. For litigation in foreign jurisdictions, it is not forbidden to take private depositions if the witness consents.
Would your answers differ materially if the foreign proceeding is arbitration, and if so how?	Yes, the access to gathering evidence in aid of foreign litigation under Norwegian law is not available in foreign-seated arbitration since the arbitral tribunal lacks the power to comply with an evidence request. The arbitral tribunal is not a competent authority to comply with such a request, cf. Section 46 of the Courts of Justice Act. There are no similar principles in the Norwegian Arbitration Act of 2004.

Gathering Evidence in Aid of Foreign Litigation Guide

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Does your jurisdiction permit gathering evidence in aid of foreign litigation?

Yes. The Norwegian authorities may comply with requests from foreign authorities regarding the gathering evidence in aid of foreign litigation regardless of whether there exists an international convention or contractual obligation between Norway and the requesting state. If such international convention/contractual obligation exists, the Norwegian courts are obliged under international law to comply with the request, provided that the conditions of the convention or agreement are met and that the implementation of the request is not in conflict with Norwegian law.

Legal provisions for court requests in aid of foreign litigation follow from Section 46 of the Norwegian Courts of Justice Act. Section 46 applies to court requests from foreign authorities, both in civil disputes and in criminal cases.

Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes.

Yes, Norway is a party to the Hague Evidence Convention of 18 March 1970 (Taking of Evidence Abroad in Civil or Commercial Matters). Norway is also party to the following agreements/conventions in regard to requirements for obtaining evidence in aid of foreign litigation:

Agreement between Norway and the United Kingdom regarding legal proceedings in civil and commercial matters of 30 January 1931
The Hague Convention on Civil Procedure of 1 March 1954
The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 15 November 1965
The Agreement between the Nordic countries on mutual legal aid of 26 April 1974
The Supplementary Agreement between Germany and Norway of 17 June 1977 to the Hague Convention
The Supplementary Agreement between Austria and Norway of 21 May 1984 to the Hague Convention

Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests.

A request for gathering evidence in aid of foreign litigation that is not covered by an agreement with a foreign state should be filed in accordance with Section 46 of the Courts of Justice Act. The request should be sent through the Ministry of Justice unless otherwise agreed with the foreign state. The Ministry of Justice appoints the competent District Court to respond. Alternatively, the King (i.e. the government) may decide that evidence requests may be sent directly from the foreign authority to the local courts, cf. Section 46 fourth paragraph of the Courts of Justice Act.

The receiving District Court shall assess whether it is competent to comply with the request, cf. Section 46 second paragraph.

The agreements/conventions referred to above set out the following alternative procedures apply for making requests for gathering of evidence:

The Hague Convention on Civil Procedure of 1 March 1954: Requests for gathering evidence shall be transmitted by the consul of the requesting state to the local district court in the court district where the person to whom the request applies is present, cf. Article 9.
The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 15 November 1965: Requests for gathering evidence shall be transmitted directly from the competent authority of the requesting state to the Norwegian Ministry of Justice, cf. Article 2.
The Hague Evidence Convention of 18 March 1970: Requests for gathering evidence shall be transmitted directly from the competent authority of the requesting state to the Norwegian Ministry of Justice, cf. Article 2 and section 1 of Norway's declaration to the convention.
The Agreement between the Nordic countries on mutual legal aid of 26 April 1974: Requests for gathering evidence may be transmitted directly to the local district courts of Norway.
The Supplementary Agreement between Germany and Norway of 17 June 1977: Requests for gathering evidence may be transmitted directly to the local district courts of Norway, cf. Article 1 and Article 5.
Agreement between Norway and the United Kingdom of 30 January 1931: Requests from the United Kingdom may be transmitted directly from a Diplomatic or Consular Officer of the United Kingdom to the local district courts of Norway.

What types of information can be sought? Requests for Documents? Written questions? Depositions?

Section 46 of the Courts of Justice Act applies to all types of court requests, including requests for taking evidence in Norwegian courts, requests for documents and requests for service of foreign documents. However, Section 46 does not apply to the extradition of people who have been sentenced abroad or are being prosecuted, or the use of coercive measures under the Criminal Procedure Act (inter alia, concealed video surveillance and technological tracking, audio surveillance and other sorts of communication control).

To take witness testimony, the witness will typically be subpoenaed to give testimony directly before the court. A witness can also be compelled to give access to certain documents/materials. If evidence is requested to be taken in a particular way, the request will usually be granted if not in violation of Norwegian law. Depositions are allowed under Norwegian law but are rarely used.

Who bears the burden of showing whether any privileges apply?

The burden lies on the party asserting that the relevant privileges apply.

Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending?

No, there are no requirements under Norwegian law for the request to demonstrate that the information sought is allowable in itself in the foreign jurisdiction in which the action is pending.

However, requests for gathering evidence shall state the requesting authority, the nature of the case and the parties' full names and addresses. Furthermore, the request shall include a description of the factual circumstances that the request concerns. The court must further investigate whether the request is sent by a competent foreign authority and whether it is submitted in a language accepted by Norway.

If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.)

As a main rule, witnesses shall give oral evidence directly before the court of deposition. However, the Norwegian Dispute Act Section 27-4 allows depositions to be conducted remotely e.g. if non-remotely securing of the evidence would otherwise lead to the court case being postponed. The court decides at its own discretion.

Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings?

The court is not obliged to carry out the taking of evidence for the purpose of so-called "pre-trial discovery of documents", known from the common law system, cf. Article 23 of the Hague Evidence Convention of 18 March 1970. Norway has made a declaration to this provision specifying the kind of requests that will not be complied with. The statement reads:

"The declaration made by the Kingdom of Norway in accordance with Article 23 concerning "Letters of Request issued for the purpose of obtaining pre-trial discovery of documents" shall apply only to Letters of Request which require a person

to state what documents relevant to the proceedings to which the Letter of Request relates, are, or have been, in his possession, other than particular documents specified in the Letter of Request; or
to produce any documents other than particular documents which are specified in the Letter of Request, and which are likely to be in his possession."

Consequently, the requested documents must be sufficiently specified to be submitted pursuant to Norwegian law. For example, requests that require all relevant documents or e-mails to be submitted can be rejected. The court may also demand the requesting authority to specify in more detail which documents are required to be submitted.

May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice?

Yes, citizens residing in Norway may voluntarily give evidence in a foreign proceeding. For litigation in foreign jurisdictions, it is not forbidden to take private depositions if the witness consents.

Would your answers differ materially if the foreign proceeding is arbitration, and if so how?

Yes, the access to gathering evidence in aid of foreign litigation under Norwegian law is not available in foreign-seated arbitration since the arbitral tribunal lacks the power to comply with an evidence request. The arbitral tribunal is not a competent authority to comply with such a request, cf. Section 46 of the Courts of Justice Act. There are no similar principles in the Norwegian Arbitration Act of 2004.

Gathering Evidence in Aid of Foreign Litigation Guide

Norway

Gathering Evidence in Aid of Foreign Litigation Guide

Norway

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