Choice of Law in International Cases

A court sitting in Norway can, in some circumstances, be required to apply foreign law to resolve the substance of a dispute. This is the domain of choice of law, sometimes called private international law's 'conflict of laws' branch, and it is distinct from the question of which court has jurisdiction in the first place.

Why the applicable law is not automatic

It is a common misconception that a Norwegian court will simply apply Norwegian law because the case is before it. In cross-border contract disputes, family matters, succession and tort claims, the applicable law is instead determined by choice-of-law rules that point to the law most closely connected to the dispute — which may be the law of another country entirely.

In contractual matters, the starting point is usually the law chosen by the parties themselves in the contract. Where no such choice has been made, courts typically apply rules that look to factors such as the place of performance, the habitual residence of the parties, or the place most closely connected with the contract. Non-contractual matters — such as tort, family law or succession — are governed by separate sets of rules, often looking to the place where the harm occurred, the habitual residence of the parties, or the location of the relevant assets.

Practical implications

Because the applicable law can affect the outcome of a dispute as much as the forum does, choice-of-law analysis should form part of the same early assessment as the jurisdiction question. A well-drafted choice-of-law clause, where the parties are free to agree on one, removes much of this uncertainty in advance. Where no such clause exists, the analysis requires identifying the correct connecting factors under the relevant legal framework and, where treaties or EU/EEA-derived instruments apply, verifying whether they override purely national conflict-of-laws rules.

This is a technical area where the difference between two plausible answers can be significant, and it typically warrants a dedicated assessment rather than an assumption. This article provides general legal information and does not constitute legal advice.