Mikal Brøndmo is a partner at Haavind in Oslo, where he specialises in arbitration and litigation, with a particular focus on complex and international disputes. He acts both as counsel and arbitrator in domestic and international proceedings and has extensive experience across a wide range of sectors, including banking & finance, construction, defence, energy, finance and offshore corporate disputes. He is also Vice Chair of the IBA Arbitration Committee and a board member of the Finland Arbitration Institute.
In this edition of FAI Insights, Mikal shares his perspective on Norwegian arbitration practice, the continued role of ad hoc arbitration, tribunal composition under Norwegian law, the factors that may increasingly favour institutional arbitration in the years ahead, and the lessons to be drawn from the Norwegian Supreme Court’s recent landmark ruling on arbitrator impartiality.
Norway has long had a strong tradition of ad hoc arbitration. From your perspective, what has made that model work well in practice, and where do you see its main limitations today?
In domestic arbitrations, the parties have experienced that ad hoc arbitration has worked very well, and I believe that the parties’ satisfaction has been the main reason why ad hoc arbitration continues to be used in many domestic arbitrations. A decisive factor has been the practice of jointly appointing the tribunal, which gives the tribunal a legitimacy that goes beyond what is normally the case. Another factor has been the lack of formalism. I believe these are key factors in why this model has worked well in practice.
In international arbitrations, however, many have experienced that foreign parties prefer more predictability than is often available in ad hoc arbitrations in Norway, particularly with regard to rules and practice. Whilst this is well known to Norwegian practitioners, foreign practitioners wish to avoid a black box, and this remains one of the main limitations today. There have been several attempts to reduce this concern, including through the increased use of NOMA’s best practice guidelines in ad hoc arbitrations, however, if this is not agreed before the dispute arises, the main concern remains there.
Under the Norwegian Arbitration Act, parties are expected to agree jointly on the composition of the tribunal. What are the practical implications of this, and how does it shape the dynamics of a case from the outset?
The default rule under the Norwegian Arbitration Act, as well as under the rules of the Oslo Chamber of Commerce (OCC), is that the parties shall appoint the arbitrators jointly. In practice, the parties are able to agree in around 80-90% of the cases, so it actually works.
If the parties are unable to agree, the alternative is for each party to appoint one arbitrator, and for these two to appoint the chair. However, the possibility to ensure a diverse tribunal, including in terms of competence and background, makes the default rule the preferred option for most parties. It ensures the legitimacy of the tribunal, and the parties have no reason to be as reluctant towards certain tribunal members as they would be in cases where the other party has appointed one of the arbitrators.
When advising clients on dispute resolution clauses, what factors most often tip the balance towards institutional arbitration over ad hoc proceedings?
The international element of the agreement, typically the fact that one of the parties is not Norwegian, will normally be the main driver for choosing institutional rather than ad hoc arbitration when advising clients on dispute resolution clauses. However, it is still the case that the dispute resolution clauses are not always assessed as thoroughly as certain other clauses in agreements, so one of the reasons we still see so many ad hoc arbitrations in Norway is tradition.
In May 2025, the Norwegian Supreme Court issued a ruling on arbitrator impartiality and found a breach of the duty of disclosure. What practical lessons do you think this case offers?
In my view, there are four practical lessons, and the first two are closely related. First, when potential arbitrators are asked about their independence and impartiality prior to appointment, the request to the arbitrator should specify that the candidate should consult the IBA Guidelines on Conflicts of Interest in International Arbitration 2024 before responding. Second, regardless of the wording of the request, potential arbitrators should consult the IBA Guidelines before responding.
The third practical lesson from the judgment is that even if the duty of disclosure has been breached, this does not necessarily mean that the arbitrator is not considered independent and impartial, and that the award should be set aside. As explicitly stated in General Standard 3(g) of the IBA Guidelines, an arbitrator’s failure to disclose certain facts and circumstances, does not necessarily mean that a conflict of interest exists, or that a disqualification should ensue.
The fourth practical lesson is, in my view, that the threshold for refusing appointment of an arbitrator is not always the same as the threshold which applies when deciding whether the award shall be set aside.
I have presented the judgment in more detail in my article, ‘IBA Guidelines on Conflicts of Interest in International Arbitration – an introduction to the IBA Guidelines and Nordic practice’, where I have looked into the Guidelines’ use as a legal source in the Nordic countries.
Are there particular features of FAI arbitration that you find especially well-suited to disputes with a Norwegian or wider Nordic dimension?
In disputes involving parties from other neighbouring Nordic countries, I assume that not only Norwegian parties, but also other Nordic parties, would prefer agreeing on a Nordic institution as the FAI rather than an institution outside the Nordics.
The FAI has a long track record in cross-border disputes. As a board member of FAI, I have been informed that among cases initiated in 2026, the figure stands at 45%. Furthermore, the FAI reflects the Nordic arbitration culture, including its predicable yet pragmatic and efficient approach. The latter is illustrated by the statistics for 2024, where the median during under the FAI Arbitration Rules was 9 months and under the FAI Expedited Rules only 3.4 months.
Looking ahead, do you expect Norwegian arbitration practice to see a shift towards institutional arbitration, and what might drive such a change?
I expect that developments in Norway will continue to move towards institutional arbitration. Since I wrote an article on ad hoc v. institutional arbitration a decade ago, my experience has been that the shift is moving slowly, but steady. The trend is there, but without a major Norwegian arbitration institute, I do not expect the pace to increase in years to come.
