Enforcement immunity

Domestic law

Describe domestic law governing the scope of enforcement immunity.

There is no domestic law governing the scope of enforcement immunity. However, the Act on Foreign State Ships, which was also mentioned under question 2, in section 3 of the act regulates that foreign state ships not carrying out commercial actions enjoy executional immunity. The Danish rules on enforcement immunity are based on customary international law, and are similar to what applies for the jurisdictional immunity, see question 4.

Article 19(c) of the UNCSI states that property intended for commercial purposes only are not covered by enforcement immunity. This approach is in accordance with the differentiation between acts related to state power (acts de jure imperii) and commercial acts (acts de jure gestionis), which, in principle, apply in Denmark.

Application of civil procedure codes

When enforcing against a state, would debt collection statutes and the enforcement sections of civil procedure codes or similar codes also apply?

The general rules on enforcement in the Danish Administration of Justice Act, chapter 45, apply equally to state, private entities and civilians. Consequently, there are no general provisions exempting the enforcement of judgments against states. However, assets covered by enforcement immunity will be exempted from these enforcement provisions. For instance, state property used for state purposes is covered by enforcement immunity.

Consent for further enforcement proceedings

Does a prior submission to the jurisdiction of a court or tribunal constitute consent for any further enforcement proceedings against the property of the state?

A prior submission to the jurisdiction of the court will not constitute consent for enforcement proceedings. However, such submission will often constitute consent to jurisdictional proceedings.

According to the UNCSI article 18 and 19, enforcement proceedings may not be carried out, unless the state has given specific consent in one of the ways described in the articles. Prior submission is not among the exceptions mentioned, and it is therefore assumed that a prior submission will not be enough to constitute consent to enforcement proceedings on property used by the state in relation to acta de jure imperii.

Property or assets subject to enforcement or execution

Describe the property or assets that would typically be subject to enforcement or execution.

Property, used for commercial purposes, will be subject to enforcement in accordance with customary international law. Such assets include state-owned real estate, vessels, airplanes, etc, which are owned as part of a commercial activity and operated on market conditions.

UNCSI article 2(1)(c) defines ‘commercial transaction’ as (i) any commercial contract or transaction for the sale of goods or supply of services, (ii) any contract for a loan or other transaction of a financial nature, including any obligation of guarantee or of indemnity in respect of any such loan or transaction, and (iii) any other contract or transaction of a commercial, industrial, trading or professional nature. Assets connected directly to such transactions will not enjoy enforcement immunity in Denmark.

Assets covered by enforcement immunity

Describe the assets that would normally be covered by enforcement immunity and give examples of any restrictive or broader interpretations adopted by the courts.

Assets that are normally covered by enforcement immunity include the assets that are very closely connected to the state’s performance of its sovereignty. Some of these assets are mentioned in articles 22 and 24 of the Vienna Convention on Diplomatic Relations:

  • diplomatic premises;
  • vehicles belonging to the embassy;
  • documents related to the embassy;
  • shipments to and from the embassy (the diplomatic bag); and
  • other types of equipment belonging to the embassy.

Other examples of assets covered by enforcement immunity include warships, vessels carrying out acts directly related to the state, planes carrying out acts related to the state power, for example, planes transporting government officials.

Explain whether the property or bank accounts of a central bank or other monetary authority would be covered by enforcement immunity even when such property is in use or is intended for use for commercial purposes.

As described under question 17, the general rules on enforcement in the Danish Administration of Justice Act, Chapter 45, apply equally to state, private and civilian owned property, subject only to the restriction of immunity. Whether assets are subject to enforcement immunity is determined by the nature of the assets (ie, whether the specific assets are used for commercial or state purposes). However, article 21(c) of the UNCSI states that ‘property of the central bank or other monetary authority of the State’ is always considered as property intended for state-use only, and is therefore always covered by immunity. UNCSI is assumed to reflect Danish rules of law on immunity and it is, therefore, expected that a Danish court would follow this approach.

Test for enforcement

Explain whether domestic jurisprudence has developed any further test that must be satisfied before enforcement against a state is permitted.

If the Danish court has decided that the asset in question is not covered by enforcement immunity, the court will not apply further test, but follow through with the enforcement.

Service of arbitration award or judgment

How is a state served with process or otherwise notified before an arbitration award or judgment against it (or its organs and instrumentalities) may be enforced?

Arbitration awards and court judgments do not require formal service in order to be valid and binding on the parties. However, enforcement of an award or a judgment must take place via the Danish bailiff’s court, in section 487(1) of the Danish Administration of Justice Act. After receiving the request for enforcement, the bailiff’s court will serve the debtor with notice of the enforcement proceedings, including information relating to time and place for the enforcement proceedings.

If the bailiff’s court fails to notify the debtor this might lead to the ineffectiveness of the enforcement. The enforcement proceedings are allowed to take place in case of the debtor’s absence. However, in cases where the debtor is a state, it will be necessary for the bailiff’s court to consider the question of enforcement immunity in accordance with customary international law and UNCSI article 19, provided the question has not already been tried before the court, before the court hearing the case.

History of enforcement proceedings

Is there a history of enforcement proceedings against states in your jurisdiction? What part of these proceedings is based on arbitral awards?

There have been a few cases regarding enforcement proceedings against states in Denmark. None of them is based on arbitral awards.

The case from 1942 (U.1942.1002/1.Ø concerned a vessel belonging to a state-owned shipping company of the Soviet Union. The vessel was located in the harbour of Copenhagen. The Eastern High Court concluded that the vessel could not be subject to arrest proceedings because the vessel was ultimately owned by the Soviet Union and, therefore, covered by immunity. As mentioned under question 8, this case does not reflect Danish law on immunity.

In another case from the High Court from 2001 (TBB 2001.456) relating to diplomatic immunity, an Iranian diplomat was ordered to move out of a tenancy. Although he did not enjoy jurisdictional immunity because the case derived from an acta de jure gestionis, he was still covered by enforcement immunity due to the statute of the Vienna Convention. Consequently, the judgment could not be enforced and the Iranian diplomat could, therefore, not be physically forced out of the tenancy.

In the Supreme Court cases described above from 1982 (UfR.1982.1128.H) and 1992 (case no. 1992.453.H), also relating to diplomatic immunity, the Supreme Court found that the jurisdictional immunity did not apply, because of acta de jure gestionis. In both cases the states lost; however, the judgments were never enforced as the states still enjoyed enforcement immunity.

Public databases

Are there any public databases through which assets held by states may be identified?

There is no public database in which assets held by states can be identified directly. However, different national registers, such as the public register of real estate and the public register of companies, render it possible to identify the legitimate owner of real estate and companies.

Court competency

Would a court in your state be competent to assist with or otherwise intervene to help identify assets held by states in the territory?

There is no general access for the Danish courts to help identify assets held by states or other parties.

Even though Danish courts can issue a disclosure order in respect of a request from a party to a court trial, such order may be ignored by the counterpart. Failure to comply with a disclosure order can only be sanctioned by the court drawing adverse inference from such failure to comply. Consequently, a Danish court cannot force states to disclose specific information.