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English law in a Norwegian Law Firm

Rita Allan

9 November 2016

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Agenda

• Introduction to Wikborg Rein and Rita

• Why is English law important

• Historical background

• Professional roles and the split profession

• Overseas examples

• Practice area examples – Shipping, Banking, Petroleum & Energy, Int. Property

• What does a law firm look for?

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Agenda

• Differences between English and Norwegian law – in law making

and the role of precedents, contract writing and interpretation

• Commercial contracts and consumer protection

• EU and Brexit

• Questions and discussion

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• Established in 1923, largest in Norway with over 230 employees

• One of Norway's 500 largest companies

• Unique international presence with offices in Oslo, Bergen, London,

Singapore and Shanghai

• Comprehensive legal assistance within all of the firm's practice areas

• Extensive experience in assisting Norwegian and international firms

within the private and public sector

About Wikborg Rein

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1923 Established

1978 Bergen

1987 London

2000 Singapore

2002 Shanghai

2016 235 lawyers

1965 Kobe

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• Core Practice Areas: Shipping Offshore, Corporate, Banking and Finance, Energy and

Natural Resources, Dispute Resolution, Trade, Industry and Public Sector (including

technology, media and telecommunications), Real Estate and Construction.

• Offices abroad – and a global network of leading overseas law firms enables one-stop-

shop, ensures flexibility and allows for opportunities to work effectively internationally

• Several dozen lawyers with international experience and teams of lawyers with

competence in Norwegian English, Chinese, Singaporean and Brazilian law

Strong international focus in all fields of expertise

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Petroleum and Energy Group in Oslo since 2012

- Educated in Australia and became an Australian

solicitor in 2002

- Solicitor in England & Wales since 2005 (QLTT)

- Previously at White & Case LLP (a US law firm)

- Significant in-house experience at Balfour Beatty

and EDF Energy

- Primarily advises on contractual issues in energy

and petroleum law as well as construction and

engineering projects. In particular, Rita focuses on

assisting buyers of natural gas. A client on record is

Naftogaz (Ukraine) in its dispute against Gazprom

(Russia)

Rita Allan, Senior Lawyer

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• UAE

• Kazakhstan

• Canada

• New Zealand

• Australia

• Indonesia

• Mauritania

• Tunisia

• Vietnam

• Malaysia

• Qatar

• Philippines

• Venezuela

WR has supported oil and gas projects all over the world

• Brazil

• Mexico

• Egypt

• India

• Norway

• Angola

• Russia

• UK

• Germany

• USA

• Nigeria

• Gabon

• Thailand

• Cambodia

• China

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• World class competence in English law significantly expands the

firm's capabilities which is what clients want

• In 2002, Wikborg Rein was the first Norwegian law firm to have

English legal expertise at the senior level.

• English is the language of business internationally and English law is

the choice for most international contracts

Why is English law important?

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Historical background - British Empire, 1922

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The Commonwealth

• The Commonwealth dates back to the mid-20th century

with the decolonisation of the British Empire through

increased self-governance of its territories.

• It was formally constituted by the London Declaration

in 1949, which established the member states as "free

and equal".

• The Head of the Commonwealth is Queen Elizabeth II.

The Queen is also the monarch of 16 member realms of

the Commonwealth.

• The other Commonwealth members have different

heads of state: 31 members are republics and five are

monarchies with a different monarch.

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The Commonwealth nations – a basis in English law

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• England & Wales: Barristers operate independently out of a set of chambers, instructed

by solicitors (mandatory in the past)

• Commonwealth counties now have either split or fused profession

• Solicitors in the UK – changes since 1990 and practical effect

• Solicitors: UG degree plus LPC (also via conversion) then 2 years as a "trainee"

• Barristers: Law Graduates take the Bar Professional Training Course, called to the bar by

their inns, and undertake 12 months of supervised pupillage.

• Norway: All lawyers can present in normal courts, extra requirements for Supreme Court

only

• UK Litigation – additional time, effort and cost of engaging barristers and law firms

Professional roles and the split profession

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• Significant application of English law terminology and principles in

commonly used standard form engineering & construction contracts

• English law is seen as trustworthy legal infrastructure

• Middle East – Dubai International Financial Centre courts using common

law principles based on English law (DIFC)

• Kazakhstan: Reform of justice sector in general and creation of Astana

International Financial Centre (AIFC) – Heavy involvement by UK

government & EU who welcome this independent court

• UK has a vested interest – top 5 investor in Kazakhstan in oil, gas,

mining, finance, health and education sectors

Overseas examples of reliance on English law

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• Huge amount of international work

• Estimate that the majority involves some English law

• Historical / language reasons (familiar)

• Contractors & Buyers from different countries

• Due diligence – M&A work, distress

• Favourable case law e.g. for seizure of vessels

• Rig markets and shipyards in Asia

• local disputes applying English law

Practice Area - Shipping & Offshore

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• Most Norwegian lenders are active internationally

• English law agreements at least weekly even for Norwegian clients

• Important to understand the principles, backdrop and importance of language

and boilerplate terms

• Significance of form e.g. What is a Deed? Warranty?

• Role as strategic advisor

• Co-operation e.g. syndicated loan agreement of 20 banks to lend 2bn will

often involve many countries and English law is then considered "neutral"

Practice Area - Banking & Finance

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• Patent law specialist – 90% of the patent cases are governed by Norwegian law

• BUT: English cases involving patent litigation from the UK High Court and the Court

of Appeal are given significant weight and are raised all the time in court although

they are not formally binding (many more cases to consider)

• German and Dutch cases also informative, to a lesser extent

• Norwegian law incorporated the European Patent Convention in 2008

• A recent UK High Court or patent Court of Appeal judgement is far more relevant than

any Norwegian Supreme Court cases prior to 2008

• Shift in general to more lengthy, verbose agreements incorporating concepts from

common law also in Norway

Practice Area – Intellectual Property

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• Excellent academics plus other activities – law review journal work is considered best,

then legal experience e.g. "traineeships", then any advocacy, then other groups etc.

• We have a number of lawyers who are dual qualified in Norway and the UK

• Exposure to common law themes and ways of working sets you apart (experience

studying or working outside Norway is a huge plus)

• Excellent drafting skills in English is a must, and takes practice

• Broader experience is valuable in all sectors – law firms, government, companies

What employers look for in a candidate

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«Break»

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• Law making and the importance of precedents:

For: Need for predictability, formal justice and equality, and the

avoidance of creating judge-made law

Against: Need for flexibility, e.g. changing social conditions, and

the need for reasonable results in a particular case.

These contrasting needs reflect moral, political and legal factors.

• Contract drafting

• Interpretation of contract terms

Key differences between English and Norwegian law

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• Common law established by William the Conqueror in 1250

• Supplemented by the law of Equity and its remedies based on

natural justice

• Case law established the fundamental importance of precedence

• European law takes precedence – watch this space post Brexit!

• Contrast Norwegian law making traditions

English law making traditions

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• English contracts usually long by comparison

• Aim to cover all eventualities – Freedom to contract, few statutory codes

• Acceptance of concepts like the Entire Agreement clauses not usual in

Norway

• No underlying assumption of a doctrine of Good Faith in commercial dealings

• Norwegian law relies on constitution to fill the gaps

• Shift in expectations in Norwegian style since petroleum was discovered

Drafting styles in England vs Norway

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• English approach – give effect to the wording of the contract –

"four corners" rule and risk of suffering the consequences of

poor drafting

• Norwegian approach – consider common intent and reasonable

objective understanding of the wording: a holistic approach

• Tension between certainty and reasonableness

• Influence of EU Law and an English shift to common sense

Interpretation – Differences in approach

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• EU consumer protection law is highly regulated – what about commercial contracts?

• Interpretation is heavily dependent on local state law and will differ accordingly

• Any attempt at harmonisation is a currently unheard of form of regulation (consider

the Acquis Principles) inspired by civil law and consumer protection law

• Consider the "emotional spasm" of the good faith doctrine, unguided by the discipline

of English contract law and of limited application in commercial dealings (as opposed

to fiduciary dealings for example)

• Consider: Silence in negotiations is not a misrepresentation and thus is not actionable

even if arguably in bad faith (false information would give rise to damages in tort)

• Restitution also not much help if negotiations broken off and losses suffered

Commercial contracts and consumer protection in the EU

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• Mitigation of (intended) effect if local civil law applies, e.g. "entire agreement" clause

and other boilerplate terms

• Linguistic vs legal meaning based on precedent may be different

• Beyond control clauses – actual control (civil) vs objective allocation of risk (UK)

• Achieving a consensus based on general principles – UK's Lord Mustill in 1988

considered 25 general principles in arbitration to be "so general that they are useless"

• Consider standard terms e.g. INCOTERMS, FIDIC etc and trade usages

Commercial contracts and consumer protection in the EU

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To quote the really very good BBC Radio 4 comedy program of the same name

which has been running since 1972:

"I'm sorry, I haven't a clue!"

EU and Brexit – impact on English law

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Any Questions?

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Contact details

OSLO

Tel +47 22 82 75 00

Fax +47 22 82 75 01

oslo@wr.no

BERGEN

Tel +47 55 21 52 00

Fax +47 55 21 52 01

bergen@wr.no

KOBE

Tel +81 78 272 1777

Fax +81 78 272 1788

kobe@wr.no

SHANGHAI

Tel +86 21 6339 0101

Fax +86 21 6339 0606

shanghai@wr.no

LONDON

Tel +44 20 7367 0300

Fax +44 20 7367 0301

london@wr.no

SINGAPORE

Tel +65 6438 4498

Fax +65 6438 4496

singapore@wr.no

www.wr.no

Legal disclaimer: This presentation comprises a general description of certain rules of Norwegian law. It

does not constitute legal advice, and should not form the basis for any commercial decisions.

29 Photo: Wikborg Rein, Erik Burås/STUDIO B13, Ilja Hendel, istockphoto.com