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Reglene om anke til lagmannsretten ble revidert da tvisteloven ble vedtatt i 2005, men mye tyder på at revisjonen ikke har virket helt etter hensikten. Reglene har flere ganger senere blitt foreslått endret. I denne artikkelen blir det argumentert for at det bør gjøres mer grunnleggende endringer av ankereglene enn det som hittil har blitt vurdert. Forfatterne hevder at de norske ankereglene i for stor grad åpner for en full omprøving, i stedet for den mer begrensede overprøvingen som var intensjonen med tvisteloven. Ved å sammenligne med rettstilstanden i andre land, særlig Tyskland, Spania, Sverige og Finland, hevder forfatterne at det er mulig å finne inspirasjon til hvordan et system basert på begrenset overprøving kan oppnås, og hvilke hovedgrep som må gjøres i norsk rett for å få innført et slikt system.

This chapter maps the structure of the Nordic justice systems and explores whether and why one could argue that there is a ‘Nordic’ structure. The aim is also to examine recent changes and to investigate whether these entail a cultural shift in some or all Nordic countries. It examines shifts in the intended functions of the courts; changes in the court structure; and the use of alternative dispute resolution outside courts. It argues that the while the private functions of Nordic courts have been accentuated in recent decades in that courts are increasingly expected to facilitate amicable solutions, while alternative dispute resolution outside courts has also been important. It also discusses how the ideal of the generalist judge has been important in consolidating the Nordic court structure. While most of these changes are congruent across the Nordic countries, and have hence strengthened the Nordic court culture, differences among the countries regarding recourse against administrative decisions are growing. New differences among the Nordic countries have emerged and these do not follow the existing divide between the East-Nordic and the West-Nordic countries.

Based on the insights from the previous chapters in this volume, this concluding chapter discusses key traits of Nordic courts: colloquial legal language, generalist judges, ‘unrefined’ and fragmentary laws, high trust in the state and judges, and corporatism. The development of these traits over time is explored as well as the emergence of new traits that could be labelled ‘Nordic’. It also discusses how two current trends—Europeanisation and privatisation of dispute resolution processes—influence Nordic courts. The question whether a unified Nordic procedural culture still exists is raised. Finally, the future of Nordic courts is discussed.

Europeanisation, globalisation, privatisation, diversification and digitisation are trends that all exert an influence on courts and the justice system. Still, our understanding of the interrelationship between these currents in the legal landscape and national court culture is limited, which in turn impedes our comprehension of the on-going, potentially transformational processes related to courts. Nordic courts and court proceedings are, naturally, influenced by these trends both directly and indirectly, and their reactions to the developments are contingent on the underlying legal culture.

EU law has a tangible influence on the civil procedure law in the Nordic countries. This chapter explores how EU civil procedure law is practised and perceived in the Nordic countries. First, a brief account of the manifold levels and types of EU civil procedure law is given. The extent to which Nordic legal academics, judges and legal counsel make use of and discuss EU civil procedure law is analysed. A key question is whether lawyers appear to have a relatively superficial knowledge of EU law (i.e., they identify only central issues) or whether they have acquired profound skills (i.e., they are able to identify and address complex issues). Third, the transposition of EU hard law and case law into national civil procedure law in the Nordic countries is examined. The Nordic countries generally implement EU hard law diligently, at least formally. Nevertheless, it will be argued that the quality of implementation is sufficient and that case law-based rules are often inadequately transposed. Finally, the consequences of a superficial approach to EU civil procedure law in the Nordic countries are discussed.

This chapter discusses first the value of enshrining children’s rights in national Constitutions in addition to implementing the United Nations Convention of the Rights of the Child. Second, it gives a brief introduction to the Nordic countries, their societies and legal systems, such as the Nordic welfare model, court systems and the sources of law. An introduction is also given to Nordic constitutional law: the age of the constitutions, traditions of constitutional interpretation and amendment and judicial review or rather the reluctance of Nordic courts to perform judicial review and a discussion of the shift towards increased review. The third part addresses children’s rights in the Nordic Constitutions, with an overview of the provisions of particular relevance for children. The final part presents the scope of the present study of children’s constitutional rights in the Nordic countries, its rationale, structure and methods, as well as the structure of this volume.

This chapter consists of a comparative analyses of children’s constitutional rights in the Nordic countries. First, we analyse children’s constitutional rights in general in the Nordic countries to assess if and how a Constitution is in line with the child’s rights approach of the Convention on the Rights of the Child (crc). We build on a model developed by Conor O’Mahony that measures the protection of children’s constitutional rights in Europe across three spectrums: visibility, agency and enforceability. Our study is a more detailed analysis of fewer countries and enables us to discuss the reasons for the differences. Second, we discuss how international instruments supplement constitutional law in the Nordic countries. Third, we compare implementation and enforcement of children’s rights in each of the three domains included in this volume: the principle of the best interests of the child, participatory rights and the right to family life. Finally, we assess whether and how enshrining children’s rights explicitly in the Constitution influences the enforcement and implementation of those rights. A key question is whether constitutionalisation of children’s rights is a culmination of a shift in our view of children, or the start of a new era.

FAMILY MAINTENANCE AND MULTI-LEVEL REGULATION Globalisation, free movement of labour and migration affect regulations on judicial co-operation and cross-border proceedings in family matters, including family maintenance. Since the turn of the millennium, EU (procedural) family law has emerged as a field of law. The EU Maintenance Regulation was draft ed concurrently with the 2007 Hague Convention on maintenance, creating a direct link between EU law and international law. Before then, the Brussels regime on the jurisdiction and the recognition and enforcement of civil and commercial matters had a few provisions regulating family mediation. So did its parallel instrument, the Lugano Convention, which extends the free movement rulings to the entire single market, including European Free Trade Association (EFTA) states. Despite the fact that the Agreement on the European Economic Area (EEA) widens the single market and the four freedoms to states outside the EU, the development of family law in the EEA or EFTA has stagnated. International law and EU law on family maintenance have taken a leap forward and formed a connection. Simultaneously, the connection between EU law and EFTA law has weakened: the Treaty of Amsterdam has developed the competences of the EU, whereas EFTA law has maintained the status quo . Currently, family maintenance is regulated on five levels: (1) on an international level through the Hague regime, (2) on an EU level, (3) on an EFTA level, (4) on a regional level, and finally (5) on a national level. The three first levels of law are interconnected and partially overlapping. However, a multi-level approach may be beneficial for regulating family maintenance in a multi-speed Europe. A multi-level, multi-speed approach may also increase complexity and opacity, creating an intricate web of regulation. This chapter examines the interplay between instruments at different levels and discusses whether the relationships are constructive or disruptive. The existence of several levels of regulation results in complexity, yet the levels are complementary, filling lacunae. This chapter explores how different levels of law could be used to enhance integration of civil procedure, including the advantages and disadvantages of each level. The focus is on managing multispeed integration, where some countries are part of, or closely tied to, the single market, but do not participate in judicial co-operation.

This chapter examines whether including children’s participatory rights in the Norwegian Constitution has had any legal or practical impact. It uses Susan White’s typology of participation rights as a tool for examining whether children’s participation is nominal, instrumental, representative or transformative. The preparatory works of the Norwegian Constitution are ambiguous. On the one hand, the importance of providing participation to improve the decisions made and to teach children self-determination is recognised. On the other hand, the preparatory works promote a restrictive stance in the more detailed recommendations. The preparatory works exclude collective participation as a constitutional right, but still ordinary legislation contains such rights in some domains, and youth councils are common in Norwegian municipalities. The Constitution, however, clearly enshrines participation as an individual right. This chapter analyses participation rights in cases concerning parental responsibility in both out-of-court mediation, court-connected mediation and litigation, child welfare and child protection cases in and outside courts and in health care to assess the level of protection in practice. In spite of modernisation, legislation still offers only partial protection. The right to participation, particularly as it is manifested in guidelines and practices, depends on the area of law and on the organ where decision-making takes place. It concludes with some observations on the age, maturity and increasing self-determination of children.

The Nordic courts and court culture have several distinctive traits: (1) a three-tier court hierarchy with little specialisation; (2) judicial discretion and pragmatism; (3) “Nordic” oral proceedings; (4) lay participation; and (5) the role of Supreme Courts and the doctrine of quasi-stare decisis. Many of the traits are not uniquely Nordic, yet their combination and small distinctions compared to other legal systems do set them apart. There are also considerable differences between the Nordic countries. The main divides follow the historical division between the historical Swedish, eastern, kingdom, which included Finland; and the historical Danish-Norwegian kingdom, which also included Iceland.

Submitted manuscript version. Published version at https://doi.org/10.18261/issn.0809-9553-2016-02-02. I artikkelen analyseres gjeldende regler for mekling i konflikter om omsorgsorganisering. Forfatteren diskuterer så vel organiseringen av meklingen som formålet med meklingen. Et sentralt utgangspunkt er at meklingen i større grad må tilpasses familier med underliggende problematikk og at dette forutsetter en kartlegging av bakgrunnen for det høye konfliktnivået i familien. Forfatteren analyserer ulike typer av tilpasset mekling og tiltak som kan brukes i tillegg til mekling. Fordi tilpasset mekling er utviklet i hovedsak i USA, er det nødvendig å ta stilling til om og på hvilken måte de kan tas i bruk i Norge.

In this article, I analyse why and how the Norwegian child custody system fails to provide early resolution to many families. Resolution of these conflicts should be timely and adapted to the level and sources of conflict. Child custody mediation is mandatory in Norway for all separating couples with children, yet the number of child custody disputes in courts is similar to the other Nordic countries with voluntary mediation schemes only. Particularly, high conflict families seem to receive inadequate services and support to manage their conflict, although the aim of the system is to prevent conflicts from being prolonged and escalating. In addition to an analysis of the failure of the system, I explore the different tiers of mediation services (the Family Counselling Office mediation and court-connected mediation) and their relationships—or lack thereof. This interrelationship influences the mediation system and its outcomes. To understand the context, I offer a brief account of the development of child custody mediation and give a societal background for the Norwegian child custody mediation system.

Source at https://www.civilprocedurereview.com/revista/article/view/170. Traditionally, European civil procedure systems have displayed a range of structures. Currently, systems are converging around the main hearing model, which international soft law initiatives on civil procedure also endorse. This text discusses the main content and principles of the main hearing model and its application in English, Finnish, German and Norwegian law. The influence of the underlying structure of civil proceedings and the legal culture, in particular the role of the judge is explored through a comparison of the four countries. Finally, the qualities of the main hearing model are discussed, as is the way to successful implementation of the main hearing model as a tool to achieve efficient proceedings leading to quality outcomes.

This is an introduction to a collection of articles in the book Nordic mediation research. The background and history of mediation in the Nordic, or Scandinavian, countries is presented. The areas of mediation practice in the Nordic countries and Nordic mediation research are also introduced.

Europe is in a period of increasing Europeanisation of civil procedure. The European Union (EU) relies on national systems to apply and enforce EU law and it leaves procedural issues to the Member States. Therefore, many procedural elements of EU law are based on decentralised enforcement. According to the Rewe/Comet-doctrine, Member States have ‘procedural autonomy’ as long as the national civil procedure complies with the principles of equivalent and efficient enforcement. In the course of the years, the EU court has ruled many times on topics that can be referred to as some form of European procedural law. The Amsterdam Treaty of 1997 gave the EU increased competencies in civil justice. Article 81 of the Treaty of the Functioning of the European Union (TFEU), which gives the EU the power to develop judicial cooperation in civil matters with cross-border implications, and article 114 on the adopting measures to establish and improve the functioning of the internal market, give EU competence to issue secondary law in the field of civil justice. Thus, EU has gained significantly more influence on national civil procedure for both cross-border and purely national cases. Further, the EU Fundamental Rights Charter, in particular article 47 giving a right to an effective remedy and to a fair trial, contributes to the expansion of powers within the field of civil justice. According to Bart Krans, Europeanisation of civil procedure consists of three pillars. The first pillar consists of influences from the European Convention on Human Rights and the Charter of Fundamental Rights. The second pillar consists of the growing number of European secondary law concerning the crossroads of civil procedure law and private international law, especially cross-border proceedings and judicial cooperation, such as the Brussels I Regulation, the Regulation on European Enforcement Orders and the Small Claims Regulation. The third pillar can be characterised as ‘invisible’ as it consists of a number of issues that are not regulated in a coherent way. Partly it emanates from case law from the European Court limiting procedural autonomy to promote equivalent and efficient application of EU law. Partly it emanates from procedural rules in Directives. Many Directives of a mainly substantive nature include procedural (or quasi-procedural) rules that influence national civil procedure.

The first and clear conclusion from the papers in this book is far from surprising: law of the European Union has impact on national civil procedure. This might concern primary EU law, secondary EU law, case law, fundamental legal principles or soft law instruments. At the same time, there seems to be significant variation on several aspects of the impact of EU law on national civil procedure law. It appears that there is variation in the level of influence and in the way EU law has impact on national procedural systems. The various countries display considerable variation as to the extent of the influence both in terms of width and depth of the impact. In some countries, many different areas of civil procedure have undergone some change, while in others change is more limited in scope, or on certain areas even absent. Some national civil procedure systems have faced profound impact in some areas. While change in other systems has, at least so far, been limited to a much lower level of just concerns peripheral areas. In some of the countries studied, Europeanisation of EU law has met more resistance than in others. In this concluding chapter, we go into some general conclusions by analysing and comparing the various contributions.

Active use of the preparatory stage to promote a concentrated main hearing is a key element in Norwegian civil procedure. The judge actively manages the cage and prepares it for the main hearing. Judicial discretion is an important tool to allow the judge to tailor the proceedings to the need of the parties. If an issue or question is unclear, the judge has a duty to help the parties clarify the issues and provide guidance by helping parties identify disputed and undisputed facts and argument and to separate core questions from questions that are more peripheral. The judge has a duty to promote settlement either by judicial settlement efforts or by diverting the case to court-connected mediation. When appropriate, the case can be disposed of during the preparatory stage. The format of preparatory proceedings is flexible: the judge has discretion to combine written and oral proceedings and use telephone hearings. The 2008 reform of Norwegian civil procedure, which emphasised the role of preparatory proceedings, has made civil litigation swifter and cheaper. It has also enhanced the quality of proceedings and the outcome. In the final part, Finnish and Norwegian preparatory proceedings are compared. Norway has a long tradition of concentrated oral hearings, promotion of settlement and an active judge, whereas these ideas were introduced in Finland only in 1993. The comparison explores how the underlying structure and culture of civil proceedings influence the implementation of the main hearing model in countries with a similar (legal) culture.

The main hearing model used in civil proceedings may enhance the efficiency of civil litigation. The preparatory stage is a key ingredient in the model, enabling case management, clarification of issues and concentration of the case to the disputed questions. It may also facilitate judicial settlement efforts and early disposal of cases. In recent decades, the main hearing model has been implemented in several European countries that utilise common law, Nordic law, Germanic civil law and Romanic civil law. Moreover, international model principles of civil procedure are based on the model. The core assumptions of the preparatory proceedings are adapted to the local legal culture and tradition. Many of the former communist countries, by contrast, still have a piecemeal type of civil proceedings. The pleadings stage is followed by several short hearings where the evidence and arguments are collected. This introductory chapter introduces the reader to the assumptions and concepts behind preparatory proceedings and their role in the main hearing model. Other structures of civil proceedings are discussed briefly. The connection between promotion of amicable solutions through court-connected mediation and judicial settlement efforts and preliminary proceedings is also studied.

Current Trends in Preparatory Proceedings : A Comparative Study of Nordic and Former Communist Countries

The EU, the EEA Agreement and Norwegian Law Norway has stood on the doorsteps of the European Union (then the European Communities (EC)) for more than four decades. In 1960, Norway became one of the seven original members of the European Free Trade Association (EFTA), a trade-blocalternative to the European Economic Community (EEC). The Norwegian people voted against EC-membership in 1972 and 1994. In the late 1980's, a plan to create a single market including both EC and EFTA member states was launched. It resulted in the agreement on the European Economic Area (EEA), which extends the single market and the free movement of goods, persons, services and capital to non-EU EEA member states. Since 1995, EEA has only three member states: Iceland, Liechtenstein and Norway. The EEA Agreement is limited in scope: It does not include inter alia justice and home affairs. For EU legislation to become EEA law, the EEA Joint Committee must unanimously agree on including it to the EEA agreement. The EEA has its own institutions, including the EFTA Court, which has a similar function as the European Court of Justice. National courts in the EEA states can request advisory opinions on the interpretation of the EEA Agreement. The goal of the EEA is homogeneity and effectiveness, meaning equal and effective application of law in the EEA region. Effective application of substantive law often requires changes in the civil justice system. Despite being outside EU, Norway participates in some aspects of judicial cooperation. It is a party of the Lugano Convention on jurisdiction and recognition and enforcement judgments in civil and commercial matters of 1988, revised in 2007, and the Schengen Agreement. To enlarge judicial cooperation, the Norwegian government seeks to establish a parallel convention to the regulation on service of documents and the regulation on taking of evidence. The Norwegian civil procedure system is consequently far from unaffected by European law. Norway, as a rule, rejects EEA relevance of EU legislation based on article 81 TFEU, judicial cooperation in civil matters. As a principle, Norway also rejects legislation based on article 114 TFEU on approximation of laws to ensure the functioning of the internal market, if the content is primarily procedural.

Mekling er et godt verktøy i barnefordelingssaker for å oppnå konfliktreduksjon mellom foreldre og robuste avtaler. Likevel kan mekling også lede til forlikspress, avtaler som ikke er i tråd med hensynet til barnets beste og saker som kan karakteriseres som "gjengangere". I denne artikkelen forsøker jeg analysere hvorfor mekling i følge undersøkelser ikke fungerer like godt i alle barnefordelingssaker og hvordan mekling kan bli et bedre verktøy for en mer bestandig konfliktreduksjon og gode løsninger for den enkelte familie.

The Access to Justice movement and the Alternative Dispute Resolution movement have shaped the way we perceive the role and functioning of courts in society. Both movements have criticised the courts for failing to provide precise, real and achievable justice for citizens. The third “wave” of the Access to Justice movement has emphasised ADR as a tool for providing better dispute resolution processes resulting in better outcomes. Court-connected mediation has been presented as a key solution, but it has mainly failed its promises, sometimes even reducing real access to justice. In this text, the reasons why ADR in general and court-connected mediation in particular has failed its task are discussed. Then the main conditions for ADR providing increased rather than decreased access to justice are discussed. The need for understanding that ADR consists of a range of different types of dispute resolution mechanisms, the need for dispute resolution system design and the need for appropriate regulation for each type of dispute resolution process are highlighted as the most important preconditions for releasing the potential of ADR as a tool to provide access to justice.