4.3. The majority's view
Justice Bergsjø, speaking for the majority, said that whether
" direct actions are permitted must be determined by the national law regulating the matter in dispute. Therefore, the courts must first make a choice of law and decide which state's law regulates the merits of the case. The choice of law must be made based on the choice of law rules of the chosen state, see Stolt I paragraph 90-92" (paragraph 33).
In his more general remarks the justice says that the rules on direct action arise from a wish to strengthen the injured party's position "in practical and procedural terms", and that direct actions under Section 7-6 of the Insurance Contracts Act must be instigated in Norway.
According to the Courts of Justice Act(1) Act of August 13 1915 No. 5. Section 36 (1), each court must assess ex officio whether a case falls within its jurisdiction. When making such an assessment, the court must, according to subsection 2, in most civil cases "base its deliberations on the claimant's submission, provided that it has not been demonstrated that the submission is erroneous". As a main rule, the court must rely on what the claimant or the appellant contends on matters of substance. In other respects, when deciding whether to hear the case, the court must take an individual stand on both legal and evidentiary issues, and base its ruling on the facts it considers more likely. The justice refers (in paragraph 42) to a previous decision, Rt. 2015 p. 129 (Arrow), where it is stated that the assessment under the Lugano Convention is "at least mainly" in line with what generally applies according to general Norwegian procedural law. The justice in that case added that this "does not imply that the claimant, in a case on whether or not to hear an action, must present evidence for the merits of the case"; it is sufficient that the claimant "substantiates"(2) The Norwegian text is: «gjer det sannsynleg". In my translation, I would have used the word «probable» or «likely».that the criteria for competence are met. And the court in that case "assumes"(3) The Norwegian text is "legg til grunn". Here I would have preferred "finds". that the same principle is applicable under the Convention.
Then justice Bergsjø turns to the interpretation of Article 11(2) under a number of headings: starting points and interpretive principles, the wording of the article in various languages, Norwegian case law, ECJ case law, case law from national courts, statements in reports and preparatory works, purpose and system considerations.
In his summary, the justice says that the Convention
"gives no clear answer to whether insolvency in [a case of direct action] must be considered in connection with the jurisdiction issue. Nonetheless, several language versions point in the direction that the courts are not to carry out an individual assessment of the right to bring a direct action in the particular case. This is the solution that, in my view, best takes into account predictability and the aim to strengthen the position of the weaker party, while it also safeguards the fundamental goal that the defendant's domicile is available. Moreover, an interpretation that implies a thorough examination of the substantive issues during the assessment of territorial jurisdiction is alien to the system. So far, I believe that it would be best to rely on the appellants' interpretation of the Article 11(2) of the Lugano Convention" (paragraph 79).
He also remarks that the attitude in other Lugano countries varies and one cannot exclude the fact that a rule whereby it is sufficient that direct actions are permitted generally may create delimitation problems in some states. However, he finds that this cannot be decisive for the interpretation in the present case.
The conclusion is that the Convention does not imply that a direct action must be permitted in the particular case, as the Court of Appeal assumed. Consequently, the decision by the Court of Appeal must be set aside.