Translation fromNorwegian NORGES HØYESTERETT NORWEGIAN SUPREME COURT RULING Made on 11November2020 by the Supreme Court sitting as a panel of five Supreme Court Justices Justice Jens Edvin A. Skoghøy Justice Aage Thor Falkanger Justice Wenche Elizabeth Arntzen Justice Ingvald Falch Justice Erik Thyness HR-2020-2175-A, (case no. 20-027402SIV-HRET) Appeal against the Gu lating Court of Appeal's ruling of12 December 2019 The bankruptcy estate of Alpha Insurance AS (Advocate Henning Harborg) V. (Advocate Lomts Natrud Nagelhus - qualifying test case) 2 V O T I N G (1) Justice Falkanger: Issues of and background to the case (2) The case concerns an action brought against the bankruptcy estate of a Danish insurance company to establish whether there are grounds for a claim under an occupational injury insurance. The question is whether the action can be brought at the claimant’s ordinary legal venue in Norway. (3) A was working for the Norwegian company X AS when he fell and injured himself on 12 October 2007 at M. A filed a claim for compensation for his financial loss resulting from the injury under the occupational injury insurance which his employer had taken out with the Danish insurance company, Y AS, subsequently Alpha Insurance AS. (4) The claim was denied by the insurance company on 5 February 2018 on the grounds that there was no causal link between the fall and his financial loss. (5) By a ruling of 8 May 2018 by the Danish Maritime and Commercial High Court in Copenhagen, bankruptcy proceedings were opened against Alpha Insurance AS. (6) On 26 June 2018, A issued a writ of summons against Alpha Insurance AS before the Bergen District Court requesting that the company be found liable in damages for his injuries under the Occupational Injury Insurance Act. The bankruptcy estate filed a defence for a dismissal of the case. The estate contended that the claim must be registered against the in Denmark pursuant to the rules in force there. (7) In a pleading of 21 August 2018, A’s counsel stated that the rightful defendant is the bankruptcy estate of Alpha Insurance AS. (8) On 5 November 2018, A registered the claim also against the Danish. (9) The Bergen District Court heard the issue of a dismissal in a special court hearing and made a ruling on 20 March 2019 with the following conclusion: «1. Case no. 18-097626TVI-BERG/4 is dismissed. 2. Costs are not awarded.» (10) A appealed to the Gulating Court of Appeal. On 12 December 2019, the court made a ruling with the following conclusion: «1. Case no. 18-097626TVI-BERG/4 shall be heard by the Bergen District Court. 2. A is awarded costs before the Court of Appeal in the amount of NOK 204.900 – Norwegian Kroner twohundredandfourthousandninehundred –. Time limit for performance is 2 – two – weeks from service of judgment. 3. A is awarded costs before the District Court in the amount of NOK 50,000 – Norwegian Kroner fiftythousand –. Time limit for performance is 2 – two – weeks from service of judgment.» 3 (11) In short, the Court of Appeal found that it follows from the Lugano Convention that the action could be brought before the courts of A’s domicile. The Court of Appeal found that the exclusion set out in Article 1.2 b) of the Convention relating to bankruptcy actions did not apply. (12) The bankruptcy estate has appealed to the Supreme Court. On 31 March 2020, the Appeals Selection Committee of the Supreme Court decided that the appeal was to be decided by a division of the Supreme Court sitting as a panel of five justices, see section 5 1st subsection 2nd sentence of the Norwegian Courts of Justice Act. Parties’ view of the matter (13) The Appellant – the bankruptcy estate of Alpha Insurance AS – has briefly submitted the following: (14) The action must be dismissed from the Bergen District Court. Since bankruptcy proceedings have been opened against the insurance company, A is no longer filing a claim for compensation under the occupational injury insurance, but a claim for dividend in the bankruptcy estate. Accordingly, A’s claim falls under the bankruptcy exclusion set out in in Article 1.2 b of the Lugano Convention (15) The bankruptcy exclusion is in itself a jurisdiction rule entailing a requirement that the action must be brought in the country where the bankruptcy was declared. Regardless, the action must be dismissed because it follows from section 4-3 of the Norwegian Dispute Act that it cannot be brought in Norway. (16) Under any circumstances, Norwegian courts must apply Danish bankruptcy rules. These rules prohibit instituting legal proceedings relating to claims against estates in bankruptcy before any other court than the one dealing with the estate. This also follows from EU Directive 2009/138/EF Solvency II and the Nordic Bankruptcy Convention of 1933. (17) The bankruptcy estate of Alpha Insurance AS’ has submitted the following statement of claim: «1. Point 1 of the Bergen District Court’s ruling of 20 March 2019 to be affirmed. 2. The bankruptcy estate of Alpha Insurance A/S's to be awarded costs before all courts.» (18) The Respondent – A – has in outline submitted: (19) A’s claim is a general insurance claim under the occupational injury insurance. Pursuant to the Lugano Convention the Bergen District Court is accordingly the correct legal venue. The fact that bankruptcy proceedings have been instituted against the insurance company and the estate has been made a party to the dispute does not mean that the bankruptcy exclusion set out in the Convention shall apply. The bankruptcy exclusion must be interpreted strictly and only covers claims that are directly founded on bankruptcy-specific rules. (20) In the event that the action is covered by the bankruptcy exclusion, the provisions of the Dispute Act provide grounds for bringing the action before the Bergen District 4 Court. The bankruptcy exclusion is not an independent legal-venue rule. (21) The Solvency II Directive is not implemented in Norwegian law. The Directive is, regardless, only relevant within the framework of the bankruptcy exclusion in the Lugano Convention. (22) The Nordic Bankruptcy Convention is only applicable to strictly bankruptcy-related issues, not to claims that are founded on a general basis under the law of obligations and property, as in our case. (23) A has submitted the following statement of defence: «1. The appeal to be dismissed. 2. A to be awarded costs before all courts.» My view of the matter The Supreme Court’s competence (24) The appeal is a further appeal against a ruling, and the Supreme Court’s competence is regulated in section 30-6 of the Dispute Act. The Court of Appeal has submitted the case, and the provision in section 30-6 a shall accordingly not apply. Consequently, the Supreme Court can only review the Court of Appeal’s procedure and general legal understanding of written rules, see paragraphs b and c The notice of appeal addresses the Court of Appeal’s application of the law, but during the proceedings before the Supreme Court arguments are limited to addressing the Court of Appeal’s general legal understanding of written rules. The Supreme Court’s review competence also comprises the understanding of conventions and non-statutory rules of procedure, see Skoghøy, Tvisteløsning [Dispute Resolution], 3rd edition, page 1263. Does the bankruptcy exclusion in the Lugano Convention apply? Legal points of departure (25) It follows from section 145 1st subsection paragraph 3 of the Bankruptcy Act that a dispute relating to bankruptcy claims must be brought before the court that deals with the bankruptcy estate. Hence, the dispute cannot be brought before any other courts. (26) Our case gives rise to the question whether the situation is different in the event of cross-border elements. To be specific, the issue is whether an action contending to have a claim against a Danish bankruptcy estate can be brought at the claimant’s ordinary legal venue, which is the Bergen District Court. (27) I will first address the issue whether the Lugano Convention 2007 solves this question. Supreme Court judgment HR-2017-1297-A paragraph 37 states on this subject: «The Lugano Convention regulates jurisdiction and recognition and execution of judgments in civil and commercial matters between the Convention member states. It applies as Norwegian law and takes precedence in respect of claims that fall 5 within the scope of the Convention, see section 4-8, see section 1-2, of the Dispute Act.» (28) Both Denmark and Norway have ratified the Lugano Convention. Since the litigant parties are domiciled in two different Convention member states and A’s action falls within the ambit of «civil and commercial matters», see Article 1.1, it is clear that in principle the Convention shall apply. (29) However, the question is whether A’s action is comprised by the exclusion in Article 1.2 b, which reads as follows: “The Convention shall not apply to: …… …………. (b) bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings.” (30) In our case the issue is whether A’s action falls within the term «bankruptcy», and I therefore refer to the exclusion as the bankruptcy exclusion. (31) In the EU the Lugano Convention has its parallel in the Brussels Regulation 1215/2012, which supersedes Brussels Regulation 44/2001. According to Protocol no. 2 to the Lugano Convention the interpretation of the Convention shall have «due regard» for the decisions of the EU Court of Justice relating to the Brussels Regulation and its predecessor.