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From time to time Norwegian private individuals and businesses are not able or willing to pay their obligations as they fall due and enter into default. For the creditors the question will be how to pursue their claims in order to obtain payment or at least some additional security for payment. The intention here is to summarize the ways forward to obtain payment of debt. Please note that this paper does not contain a complete and exhaustive account of the procedures described herein, and that specific legal advice should be sought in each actual case.
It may be worthwhile in any matter at the outset to consider whether the debtor may have assets available for payment or attachment, and to assess whether the likelihood of success may justify the enforcement costs.
The creditor must have a valid legal ground for enforcement. The Enforcement Act 26 June 1992 No. 86 states that a creditor may only demand enforcement when he has a general or special legal ground for enforcement, and such legal ground is enforceable, i.e. that the claim is due for payment and in default.
2.1.1 General legal grounds for enforcement
The general legal grounds are inter alia a judgment or other final ruling by a Norwegian court, a Norwegian arbitration award or a settlement entered into before a Norwegian court.
A foreign judgment, settlement or arbitration award may be regarded as a general legal ground for enforcement provided it will be binding and enforceable in Norway in accordance with an international treaty, including the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, adopted in Lugano on 30 October 2007 (the “Lugano Convention”), which applies as Norwegian law.
Pursuant to section 19-16 of the Civil Disputes Act 17 June 2005, a final and enforceable ruling on civil claims rendered by a foreign court shall be recognized as final and enforceable in Norway if jurisdiction has been agreed between the parties in writing for a specific action or for actions that arise out of a particular legal circumstance, typically a certain agreement, provided such recognition would not be contrary to mandatory laws or be offensive to the legal order.
2.1.2 Special legal grounds for enforcement
Special legal grounds for levying a distress on the assets of a debtor are bills of exchange, cheques and, quite common, a promissory note on which the signature of the debtor is verified by two witnesses or in accordance with applicable regulations, and which contains an acceptance by the debtor that the debt may be enforced without civil action.
A practical special legal ground for enforcement is a written notification sent from the creditor to the debtor demonstrating the basis, extent and size of the claim. Claims based on invoices may qualify as such special legal ground.
Other special grounds for enforcement are perfected pledges in inter alia real estate, vessels, aircraft, movable property, operating accessories, financial instruments and receivables, distress, legal liens and sales liens.
As explained above perfected pledges in various assets may serve as a special legal ground for enforcement. It may be worth noting that Norwegian laws do not allow a general charge over all the assets of a debtor as security. Consequently, a pledge over an asset must have a legal ground which will be found in various acts.
The majority of such grounds are laid down in the Liens Act 8 February 1980 No. 2. The act contains provisions relating to inter alia pledges over real estate, rental agreements regarding real estate, movable property, operating accessories, motor vehicles, construction machinery, railway equipment, agriculture equipment, crop and livestock, fishing gear, stocks of goods, sales liens, financial instruments including shares, money claims and receivables, and patents.
A vessel registered in the Norwegian Ordinary Ship Register or the Norwegian International Ship Register may be mortgaged according to the provisions of the Maritime Code 24 June 1994 No. 39 and subsidiary regulations. The act contains provisions relating to maritime liens, which take priority over registered mortgages securing debt.
Security may be taken in an aircraft registered in Norway by registering a Norwegian law aircraft mortgage in Norway or by registering an international interest in accordance with the Cape Town Convention and Aircraft Protocol.
3.3.1 Norwegian Aircraft Mortgage
The Aviation Act 11 June 1993 No. 101 contains provisions relating to the registration av an aircraft mortgage in the Norwegian Civil Aviation Registry.
3.3.2 Cape Town Convention registered international interest
The Cape Town Convention and Aircraft Protocol 16 November 2001 were incorporated into Norwegian law by an act 12 November 2010 No. 58. International interests under the convention relating to security take priority over the security provisions under the Aviation Act.
The Norwegian Supreme Court has in a judgment from 2017 taken the view that Norwegian rules relating to the validity and perfection of a pledge over receivables, contractually governed by foreign law, should prevail in a case between a pledgee and the bankruptcy estate of the Norwegian pledgor. Consequently, the validity of a pledge governed by non-Norwegian law, issued by a Norwegian pledgor, risks being considered in relation to Norwegian rules of pledge in a dispute with the debtor's bankruptcy estate.
A creditor with an enforceable claim must consider whether to seek satisfaction of the claim by pursuing the claim alone, or by initiating insolvency or related collective proceedings in the estate of the debtor.
In Norway some cases, on certain conditions, must firstly be filed with a Conciliation Board, which is found in each municipality. This board does not consist of professional judges, but of persons appointed by the municipality. The intention is that the board shall try to settle the matters brought before it.
The professional courts consist of many local first instances named a “tingrett”. Norway has five courts of appeal, divided geographically. The final and third instance is the Supreme Court of Norway.
Enforcement shall as a main rule follow the mandatory provisions of the Enforcement Act. An agreement to the contrary will as a point of departure be considered invalid. Prior to an actual default the parties may not agree that enforcement shall be carried out without the involvement of the enforcement authorities.
The Enforcement Act provides for a forced sale of a security, or in some case for forced use and repossession of assets.
If the creditor needs to obtain a general or special legal ground for enforcement, the complaint must as a main rule be filed with the local Conciliation Board. In some cases the filing may be done directly to the court of first instance, notably if the claim amount is at least NOK 200,000 and both parties have been assisted by attorneys.
Where the creditor has a general or special legal ground for enforcement, the request for enforcement may be filed with the enforcement authorities, normally the local enforcement bailiff, and in some cases, with the court of first instance.
A financial collateral established in accordance with the provisions of the Financial Collateral Act 26 March 2004 No. 17 may be enforced in accordance with the act. The security must be agreed between a legal person and certain financial institutions or authorities (or between such institutions and authorities), and relates to security in cash deposits, financial instruments (including shares) and debt obligations. If agreed between the pledgor and the pledgee, the act facilitates enforcement of the financial collateral in ways easier than provided for in the Enforcement Act.
The Cape Town Convention contains enforcement provisions which deviates substantially from the procedures laid down in the Enforcement Act. The enforcement of international interests being security is facilitated, and the repossession of an aircraft is made considerably simpler for a financier or lessor.
The Norwegian insolvency legislation has up to May 2020 made it difficult for Norwegian companies to obtain successful financial restructuring arrangements, and more often than not a composition proceeding in Norway ended up in a bankruptcy proceeding. However, as a result of the Covid-19 pandemic outbreak in March 2020, the Norwegian Parliament in May 2020 adopted the Temporary Restructuring Act to Aid Businesses Facing Bankruptcy due to Covid-19.
However, because of the historically inefficient rules relating to composition proceedings, Norwegian businesses have traditionally sought to negotiate financial restructurings out of court. Such negotiations quite often take place between the financial creditors and the debtor, leaving minor trade creditors somewhat unaffected.
Because of the change in the way companies now is financed, i.e. to a large extent with bond debt instead of bank loans, such negotiations tend to be more complicated as compared to the old regime with loans from a few banks and financial institutions.
We refer to our newsletter https://www.adeb.no/en/news/news1/norwegian-parliament-passes-temporary-restructuring-act-to-aid-businesses-facing-bankruptcy-due-to-covid-19/
The new act and proceedings are supposed to facilitate financial restructurings, but it remains to be seen whether it will live up to its intentions. The Government is considering whether to propose to make the new legislation permanent and has in October 2020 circulated a request for comments.
The restructuring proceedings may be initiated by a creditor. However, it is more likely that such proceedings will commence either by the initiative of the debtor or when the debtor counter a claim for payment by applying for restructuring proceedings.
According to section 60 of the Norwegian Bankruptcy Act 8 June 1984 No. 58, an insolvent debtor shall be subject to bankruptcy proceedings when the debtor or a creditor so requests.
A creditor may choose to file a bankruptcy petition if a claim is not paid and there is reason to believe that the debtor is insolvent. The debtor is insolvent when he or she cannot meet his or hers obligations as they fall due unless the insolvency may be assumed to be of a transient nature. However, insolvency does not exist if it can be assumed that the debtor’s assets and income will be able to provide full coverage of the debtor’s obligations, even if compliance with the obligations will be delayed because the coverage must be sought through the sale of assets.
In addition to put leverage on the debtor to pay a claim, a bankruptcy petition may be filed for other reasons, inter alia because the creditor suspects that other creditors have been paid in a situation of fraudulent preference, the debtor has committed other fraudulent acts, the debtor’s business has been conducted in a negligent way that has brought losses upon the creditor and the debtor’s management and/or board of directors should be held liable for losses.
It may be difficult for a creditor to prove that a debtor is insolvent. Sections 62 and 63 of the Bankruptcy Act contain provisions relating to presumption of insolvency.
If the debtor acknowledges being insolvent, or if the debtor has ceased making payments or the creditor has been unable to achieve coverage through attachment or some other form of legal enforcement of debt during the last three months before the bankruptcy petition was submitted, insolvency is assumed.
If the debtor has a statutory obligation to keep accounting records, or has had such obligation during the last year before the bankruptcy petition was submitted, insolvency in general shall be assumed to exist when bankruptcy is petitioned by a creditor who can prove to have filed a claim against the debtor for a clear debt that has fallen due, and who at least four weeks thereafter has served a notice on the debtor to pay within two weeks. In such case the bankruptcy petition must have been received by the court during the first two weeks after the expiration of the payment deadline. The service of a payment notice is frequently used as a collection measure.
Norway may by an agreement with a foreign state accept to recognize foreign insolvency proceedings as binding in Norway. By a convention 19 November 1934 entered into between Norway and the other Nordic states Denmark, Finland, Iceland and Sweden, the states agreed that a bankruptcy in one of the states should also comprise the debtor's assets in the other states.
Apart from the Nordic bankruptcy convention, Norway has as of 2020 not entered into any bankruptcy convention. This means that inter alia U.S. Chapter 11 proceedings, UK schemes of arrangements or other similar foreign proceedings, as a main rule are not recognized in Norway, and do not as a matter of Norwegian law prevent other creditors from seeking satisfaction of their money claims in Norway. This understanding was confirmed by the Supreme Court in a ruling from 2013.