4.1. The Court of Appeal decision
With the guidance given in the Stolt I decision, the Court of Appeal in the rehearing found (2-1) that Thorco's claim was inadmissible. Norwegian law was found applicable to the direct action. The majority held that the phrase in Article 11(2) "where such direct actions are permitted" entails that the action must be permitted in the individual case. In the majority's view, it had not been demonstrated that the Stolt companies were insolvent, and the action against Gard was therefore not admissible. This is in conformity with the view of the minority in Stolt I. The dissenting judge found that under Article 11(2) that it is sufficient that direct actions are permitted, in general, under the law of the chosen state. Therefore, the suit should be admitted without a preliminary consideration of whether Stolt really is insolvent.