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1
English law in a Norwegian Law Firm
Rita Allan
9 November 2016
2
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?
3
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
4
• 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
5
1923 Established
1978 Bergen
1987 London
2000 Singapore
2002 Shanghai
2016 235 lawyers
1965 Kobe
6
• 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
7
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
8
• 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
9
• 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?
10
Historical background - British Empire, 1922
11
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.
12
The Commonwealth nations – a basis in English law
13
• 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
14
• 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
15
• 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
16
• 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
17
• 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
18
• 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
19
«Break»
20
• 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
21
• 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
22
• 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
23
• 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
24
• 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
25
• 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
26
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
27
Any Questions?
28
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
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