4.4. The minority's view
The minority agreed with the Court of Appeal majority, saying i.a.:
"Therefore, in my opinion, it is not sufficient that a general right to bring a direct action exists. In the case at hand, it means that Norwegian courts only have jurisdiction over the action brought by the Thorco companies against Gard, if the Thorco companies with a fair degree of probability can demonstrate that Stolt Tankers B.V. is insolvent" (paragraph 92).
The degree of probability required is
"a fair chance of succeeding. The insolvency requirement will typically be met when the insured has petitioned for bankruptcy, is undergoing bankruptcy or debt proceedings or is not capable of meeting the obligations as they fall due. In other words, the criteria are as a starting point well known" (paragraph 107).
The reasons for this opinion are summarized:
"The sources of law that have formed my view are primarily foreign states' case law and objective and systemic considerations" (paragraph 93).