An increased number of corporate transactions and mergers have been observed in the oil and gas sector on the Norwegian Continental Shelf (NCS) in recent years. Several oil majors and traditional utilities and downstream companies have reduced their presence and broad portfolio sales and swaps of NCS licences have become increasingly common. These changes in trends are highly relevant for the government, which aims to maintain a high level of activity on the NCS.
A recent European Free Trade Association Court decision found that travel time in itself constitutes working time if the travel is ordered by the employer. Some employers have argued that the inclusion of travel time in the concept of working time may lead to inexpedient results. However, the court did not agree with this argument. Including necessary travel time in the concept of working time is inevitable in order to protect the safety and health of workers.
In 2017 the Ministry of Justice issued a consultation memorandum regarding various changes to the IP laws. Among the proposed changes was the new rule regarding reversal of the burden of proof if an allegedly infringed patent is for a process used to obtain a product. Although the ultimate fate of this proposal remains to be seen, it is likely that when enforcing such a patent in future, defendants will bear the burden of proof to show that the patented process is not being used.
In some transactions, a non-Norwegian company may wish to register its ship with the Norwegian International Ship Register. This can be done only if the ship is managed by a shipping company that has its head office in Norway. This requirement has a bearing on the contractual structures and financing schemes that can be put in place and also raises issues concerning enforcement.
In 2016 the Ministry of Petroleum and Energy announced that in all future corporate transfers subject to ministry approval it would consider requiring security from the seller establishing a secondary liability for future decommissioning costs. The ministry will require any seller of a licensee or of a licensee's parent company to provide an unlimited parent company guarantee. However, questions have been raised about the robustness of the security achieved by the guarantee.
Zero-hour contracts are particularly controversial in Norway, which is generally known for its high level of employee protection. For example, in early 2017 a district court held that a formal arrangement under which a staffing agency's full-time employees had not received salary payments between assignments was illegal. Further, the government recently issued a discussion document outlining its proposal to amend the Working Environment Act, which is intended to target zero-hour contracts.
Following the recovery and stabilisation of oil prices, an increasing number of oil companies on the Norwegian Continental Shelf (NCS) are looking for new ways to advance developments by cooperating with contractors. Some companies are looking for a stronger commitment from their suppliers and have introduced a cooperation scheme whereby the parties share a greater portion of risk for profit or loss. However, a number of challenges may arise from such contractual structures with regard to NCS projects.
Appeals of Norwegian Patent Office (NIPO) decisions used to be handled by a separate NIPO appeals division. However, in 2013 the Board of Appeal for Industrial Property Rights (KFIR) replaced this division. The motivation for this change was to increase legal certainty through independent review and efficient, trustworthy and user-friendly prosecution of appeals. Now that the KFIR has been active for four years, it is timely to take a closer look at the extent to which these purposes are being fulfilled.
The Borgarting Court of Appeal recently rendered its judgment in a case of major importance for the upstream Norwegian Continental Shelf (NCS) industry, natural gas buyers in Europe and the Norwegian government. If the judgment becomes final and binding, it will benefit the European gas supply. However, it may be a rude awakening for institutional investors in NCS infrastructure.
The Labour Court rules on matters concerning the establishment, termination and interpretation of collective agreements, as well as on the individual consequences of a breach of a contractual obligation agreed in such agreements. A recent Supreme Court case questioned the Labour Court's jurisdiction to declare an employee's termination invalid, as the collective agreement did not explicitly mention the consequences of a breach of contractual obligations.
The Supreme Court recently clarified a number of unsettled issues that will have an impact on other wreck removal cases, including whether vessel owners can use their right to limit liability as a defence against a wreck removal order. Among other things, the decision has clarified the highly disputed interpretation of the relationship between owners' duty to take action and their right to limit liability.
One risk of doing business, particularly for innovative technology companies, is the possible existence of conflicting third-party rights. At the very least, a patent infringement lawsuit can create uncertainty with respect to a company's ability to perform, while the worst case scenario includes injunctions, damages and possible bankruptcy. While numerous options for handling a threat of this kind exist in Norway, going directly to the courts may be particularly advantageous.
A year and a half after the entry into force of the Nairobi International Convention on the Removal of Wrecks, the Ministry of Transport has completed a consultation process on a proposal to ratify the convention and implement it into Norwegian law. The ministry has suggested that the convention be implemented on a dual basis, alongside existing legislation.
An inexperienced operator on the Norwegian Continental Shelf with a relatively small organisation may invoke a need for non-operators to direct particular attention to the operator's contract award procedure; while reduced capacity of non-operators may affect their ability to contribute to joint venture operations and to exercise the required control. Consequently, it is essential that non-operators have sufficient available resources to fulfil their commitments.
Since arbitration requires agreement between the parties, a third party is not normally bound by, or entitled to invoke, an arbitration clause. However, there are exceptions to the rule. It is recommended, when drafting arbitration clauses, to take into account not only the position of the contractual parties, but also the position of possible third parties, since this may reduce or avoid the risk of difficult procedural questions that may arise if claims are later made by or against a third party.
Patents and information security have always been connected and, as such, a company cannot have a well-implemented IP rights strategy if it does not consider information security. By approaching information security as a tool to protect intellectual property, companies are better placed to implement the correct measures and contingency plans and secure and extract value from their intellectual property more efficiently.
In the early 2000s the Norwegian authorities introduced several measures to stimulate exploration and production activities on the Norwegian Continental Shelf (NCS). The number of applicants in the 2016 NCS licensing round in pre-defined (mature) areas dropped to 33 from 47 in 2014 and 43 in 2015. In light of this, it is useful to examine the existing NCS market and some of the fundamental drivers and trends looking ahead.
Over the past 10 to 15 years, Norway has focused on strengthening protections against discrimination. In 2013 it adopted three new or revised acts on discrimination and equality relating to disability, ethnic background, religion and spirituality and sex and sexual orientation. Public employers, private employers with more than 50 employees and work organisations must work actively and systematically to ensure that they achieve the purpose of the acts.
While fast-track prosecution is available only at the initiative and discretion of the Norwegian Industrial Property Office, a patent applicant can opt to avail of the Patent Prosecution Highway (PPH). The available statistics suggest that filing a PPH request in Norway will likely result in a significantly higher chance of faster prosecution, a favourable first office action and a reduced number of office actions.
The High Court recently confirmed the general criteria that must be considered when evaluating the distinction between an employee and an independent contractor. This distinction is subject to a concrete overall evaluation of the facts in the individual case, including whether the contract imposes a personal work commitment, where the work is conducted and who bears responsibility for the result.