The NAA sets out the general statutory framework for arbitration and arbitration agreements under Norwegian law. The 2004 Act applies to domestic and international arbitration, provided the arbitration is seated in Norway (section 1, NAA). Both the system and the content of the NAA are based on the UNCITRAL Model Law on International Commercial Arbitration 1985 (UNCITRAL Model Law). In addition, the NAA framework is complemented by specific statutory provisions relating to arbitration such as, for example, sections 310 and 311 of the Norwegian Maritime Code.

Under the NAA, parties can agree to resolve all present and future disputes arising from a particular legal relationship by arbitration, resulting in a final and binding arbitration award (section 10(1) NAA). The courts respect the parties' choice to arbitrate. If a dispute is brought before a Norwegian court in breach of an arbitration agreement, it must, on a party's request, be dismissed (section 7(1), NAA).

There are no formal requirements regarding the formation of an arbitration agreement under the NAA. Therefore, the question of whether an arbitration agreement has been entered into (adopted) by the parties must be determined according to either (section 31, NAA):

The NAA applies to arbitration only if the arbitration was instituted after the NAA came into force (section 49(1), NAA). This is subject to exceptions (section 49(2)-(5)). None of these exceptions affect the provisions relating to the formation of an arbitration agreement. However, a Norwegian Court of Appeal (Borgarging lagmannsrett) decision of 28 April 2008 held that for agreements entered into before 2005, the question of the existence of an arbitration agreement must be decided according to the former Norwegian Code of Procedure (former CP). Therefore, these arbitration agreements must be in writing, to be valid (section 452, former CP).

Arbitration agreements are regulated by several international conventions, including, most importantly, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention) that was ratified by Norway in 1961. Therefore, arbitration awards falling under the scope of the New York Convention have legal force and must be enforceable in Norway (section 19-16, Norwegian Civil Procedure Act and sections 4-1(2)(f) and (g), Norwegian Enforcement Act). In addition, Norway is party to the Convention on the Settlement of Investment Disputes between States and Nationals of other States 1965 (Washington Convention).

In principle, a purely oral arbitration agreement may be valid under the NAA. In this context, the NAA deviates from the UNCITRAL Model Law (Article 7(2)), which provides only for adaptation of arbitration by a written agreement. This is in line with a particularly strong tradition for oral agreements in Norway dating back to the Viking age. However, the threshold for an arbitration agreement to be considered as adopted orally is still high and an alleged oral arbitration agreement runs a high risk of not being considered adopted. This is because, by agreeing to arbitration, the parties waive their right to submit the arising disputes to ordinary courts (preparatory works of the NAA). This position is also in line with the business assumption that the parties evidence their intention to arbitrate in a written agreement.

The burden of proof is on the party claiming that an oral arbitration agreement is in force. One of the important considerations is whether arbitration agreements tend to be concluded in writing in the particular trade or industry.

Oral arbitration agreements fall outside the scope of the New York Convention, and recognition and enforcement of a Norwegian arbitration award made on the basis of an oral arbitration agreement may be refused (Article V(1)(a), New York Convention). It is therefore crucial, even under Norwegian law, to enter into an arbitration agreement in writing, to ensure the existence of the arbitration agreement and to determine the scope of the arbitration clause.

In practice, many commercial contracts merely contain a reference to a standard agreement or other document that contains the actual arbitration clause. In relation to the threshold for considering an arbitration agreement to have been concluded, it is uncertain whether this general reference is sufficient or if it is necessary to include a more explicit reference, typically directly to the arbitration clause itself.

Under the UNCITRAL Model Law, the reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that both (Article 7(2)):

In two important cases the Norwegian Supreme Court has specifically dealt with the issue of incorporation of an arbitration clause by reference to another document. Notably, both cases concerned the arbitration clauses that were regulated by the former CP, which had stricter requirements than the current NAA.

In Østrem among others v. Byggservice, the Supreme Court stated that when assessing whether an arbitration clause is agreed between the parties, the following factors should be considered:

In this case, the standard contract referred to was very widely used in construction contracts and there were no other circumstances to justify disregarding the arbitration clause.

In TINE v. Løken, the Supreme Court ruled that the arbitration clause contained in the bye-laws of a co-operative society (TINE is the Norwegian dairy monopoly) was not binding between the co-operative and one of its members. In its reasoning, the court set out parameters that should be taken into consideration when establishing whether an arbitration agreement in a standard form agreement has been adopted by reference. The following principles emanate from the judgment:

Although these two cases concerned the former CP, the principles set out in them remain relevant, to some extent, when deciding whether an arbitration agreement is adopted by reference to standard conditions under the current regime.

After the NAA has abandoned a written agreement as a mandatory requirement for a valid arbitration agreement, specific circumstances should be taken into account when assessing the parties' intention to incorporate an arbitration clause by reference to another document containing an arbitration clause. For an arbitration clause to be effectively incorporated there must be evidence that:

In addition, general contract law principles in relation to the incorporation of standard terms are also relevant when deciding whether a reference to standard terms or other agreed documents containing an arbitration clause is sufficient to incorporate the arbitration clause into the main contract. The basic rule is that a party is deemed to have accepted standard terms referred to in the main contract if the other party had reasonable cause to believe that the terms were mutually agreed. For example, if a party is not aware of the standard terms' contents before entering into an agreement, but it had an opportunity to make itself acquainted with these terms, an acceptance of the main contract terms will normally imply an acceptance of the referred standard terms.

One of the pivotal Supreme Court judgments, Vekstmiljø AS v. Ase Gartneri AS, provides guidance on this matter. In this case, a party claimed that a limitation of liability clause included in standard terms had been adopted as part of the main contract. However, the court did not consider the limitation of liability clause as incorporated, even though the standard terms had been presented to the other party and the limitation of liability clause was common in that particular field of trade. The court emphasised the following factors:

This reasoning is in accordance with the "surprising terms" principle under the UNIDROIT Principles according to which (Article 2.1.20):

Therefore, surprising terms must be expressly accepted by the other party to ensure the incorporation of the clause. For example, it is advisable to expressly incorporate the clause if either:

The basic rule of the Norwegian contract law is that passivity does not conclude an agreement. However, an established practice of dispute resolution by arbitration between the parties may lower the threshold for proving the incorporation of an arbitration clause in the parties' subsequent agreements (NAA's preparatory works). The threshold for such a tacit acceptance is still high in practice and a common usage of arbitration in the particular trade or industry (for example, oil and gas) is not sufficient.

The NAA's preparatory works also emphasise that if an arbitration clause is included in an agreed document that is used consistently in the specific industry (for example, Norwegian contractual standard (onshore) series (NS)), it can imply that the included arbitration clause is deemed to be adopted by the parties in this branch of industry. In these circumstances, an arbitration clause can be adopted without any reference in the main contract to such a clause. For example, the NS are widely and consistently used by the parties in the contractor operations market, and they contain arbitration clauses.

If the parties have submitted arguments relating to the facts of a dispute before an arbitration tribunal, without objecting to the tribunal's competence, the parties are deemed to have implicitly accepted the tribunal's competence (section 18(3), NAA). To avoid this result, the first statement of defence must contain an objection against the arbitration tribunal’s jurisdiction to resolve the dispute.

This position is in accordance with the UNCITRAL Model Law (Article 16(2)). However, the New York Convention does not recognise that parties are bound by arbitration on this basis (Article V(1)(a)). Therefore, arbitration awards rendered in Norway on this basis may not be enforceable in other member states to the New York Convention.