1. Overall
The provisions on general requirements for the parties are included in Chapter 1 “General Provisions” in which four subjects are dealt with.
2. Rule mirror for point 3 “General requirements for the parties”
The general requirements of the parties are again divided into five topics of which four are common to both standards, while the last (rights to the project material) is relevant only to NS 8412.
3. Loyalty
The provision stipulates that the parties must act loyally to each other, and to the “reasonable extent” safeguard each other's interests.
The fact that the parties to a contractual relationship have a duty of loyalty to each other is nothing new.
The loyalty obligation applies in any contractual relationship — even in agreements that lack such provisions. In the standard contracts of contract law, NS 8405 and NS 8407 have a similar provision, while NS 8406 lacks it. The courts will nevertheless take as a basis that the parties should treat each other loyally in contractual relations based on NS 8406.
The loyalty clause is probably primarily intended as a recommendation to the parties to behave properly towards each other. It is also difficult to envisage how to impose a duty on one party or give the other a right, solely by reference to the loyalty provision in paragraph 3.1 of the standards. On the other hand, it is easier to imagine that one of the parties consistently fails to follow up with other duties arising from the standards, and where the party's conduct is such that it may be appropriate to recall the general duty of loyalty. It is in this context that the courts tend to obtain supporting arguments by referring to the general duty of loyalty in contractual relationships — regardless of whether the duty of loyalty is expressly regulated in the contract or not.
We also refer to paragraph 6 of the standards “Agreements concluded after negotiations”, first paragraph. For the purposes of this provision, the parties are expected to act in accordance with “general principles of loyalty and good business practice”. That the parties should expel “good business practice” vis-à-vis each other is also legislated in Section 25 of the Marketing Act. This provision is in Chapter 6 “Protection of the interests of traders”.
As for the duty to look after each other's interests “to a reasonable extent” one might say that this one doesn't extend that much further than the general duty of loyalty -- that there are two sides to the same issue.
With that said; in consumer affairs, we often see that a special duty is imposed on the professional party to safeguard the interests of the consumer. An example of this is the professional's duty to dissuade if it is seen that the wishes of the consumer will involve a disproportionate cost, cf. Section 7 of the Artisan Services Act and Section 8 of the Bustard Registration Act.
NS 8411 and NS 8412 do not contain corresponding provisions, and the explanation is that both parties are professionals and, accordingly, are expected to have sufficient knowledge and competence to attend to their own needs. At the same time, one can still imagine situations where one party should have been more attentive and caring towards the other because there was a visible bias between them that one should not have taken advantage of.
In such situations, the provision in paragraph 3.1 of the Standards to safeguard each other's interests “to a reasonable extent” may be relevant.
4.Code of ethics
Clause 3.2 of the standards “Rules of Ethics” is not so much about how the parties should behave towards each other, although compliance with the relevant rules will have an indirect impact on the contracting party.
This provision primarily aims to ensure that both parties safeguard and respect “basic human rights” and facilitates “decent working conditions”.
The provision takes into account much of what is known from construction contracts where the so-called Oslo model has been guiding, see here.
It is obvious that the parties to a contractual relationship make such demands on each other (and to themselves).
This is not just about formality rules or party speech provisions.
One side of this is that we want to live in a society that respects human rights and that everyone should be assured “decent working conditions.”
Secondly, it is inherent in the fact that everyone involved in the contract has proper and safe working conditions (HSE), that the employees are guaranteed fair wage conditions, that the employer pays taxes and taxes, that the input factors in the production of goods do not contradict the current environmental legislation, etc.
Thirdly, compliance with these obligations will contribute to fair competition in the market. Anyone who does not fulfill such duties as we have mentioned above will naturally be able to undercut his competitors, but choosing to buy such an operator will at the same time contribute to labor crime.
For such reasons, for example, public purchasers impose strict requirements on cleanliness and orderliness, cf. the Oslo model. And violating the terms will often this represent a material default that gives the buyer an unconditional right to rescind the contract. Such sanctions are not stipulated in NS 8411 or NS 8412, but it does not exclude that failure to comply with the ethical rules could be considered to represent a material breach.
5.Sanction rules
This provision does not apply to sanctions between the parties to the Agreement, but that the parties undertake to comply with the public law sanctions rules in force at all times.
Such rules are adopted by Norway, the European Union and other relevant authorities.
Key words in the current situation are the current sanctions rules against Russia as a result of the attack on Ukraine. You can find more on this on the Government's website, which can be read here.
6.Trade secrets
It follows from paragraph 3.4 of NS 8411 and NS 8412, respectively, that neither party must act in such a way as to “wrongful” using or disseminating a trade secret of which they have acquired knowledge “on the occasion of the purchase”.
There is a separate law on the protection of trade secrets, which can be read here.
What is meant by “trade secret” is stated in the definition in section 2 of the Act.
It is worth noting that the violator of the law may be sentenced to pay compensation and damages, as well as be punished with fines or imprisonment, cf. sections 8, 9 and 10 of the Trade Secrets Act.
For a seller who receives trade secrets from a buyer in order to thereby be able to fulfill his contractual obligations to the buyer, refer to NS 8411 and NS 8412 paragraph 3.4, second paragraph.
This provision states that you may share drawings and other documentation received from your contracting party with others, unless “this is necessary” to carry out the agreement.
A typical example would be where deliveries from sub-delivery doors are dependent and where they need to receive relevant information in order to be able to deliver what is required at all.
The situation can also be the opposite where an offeror (seller) chooses to share trade secrets with a potential buyer. It may be prompted by a request from the buyer and where the offeror considers himself obliged to provide such information to demonstrate that one is able to meet the buyer's requirements and expectations.
7. Rights to the project material (NS 8412 only)
This is a comprehensive provision containing three sets of rules, namely property rights (3.5.1), right of use (3.5.2) and software (3.5.3).
We have chosen to deal with these rules in the collection of articles dealing with the special provisions of NS 8412. The rules of NS 8412 paragraph 3.5 can therefore be found here.
