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Litigation

Court system

What is the structure of the civil court system?

The Danish courts are composed of the Supreme Court, two High Courts, the Maritime and Commercial Court, the Land Registration Court, 24 district courts, the Appeals Permission Board, the Special Court of Indictment and Revision, the Danish Judicial Appointments Council and the Danish Court Administration.

The courts are governed by the Danish Administration of Justice Act. They do not have specialised subject matters. The district courts, High Courts and the Supreme Court handle all types of matters but certain cases may be handled by a department within the courts that has specific knowledge of that type of case. Furthermore, it is possible in a first instance case that the court may decide that the court, at the main hearing, must be acceded by two expert members, whose expertise is deemed to be of importance to the case. Certain requirements have to be fulfilled.

The High Courts and district courts

As a main rule, cases commence in the district courts, which are situated in each judicial district in Denmark. On very few occasions, cases may start in one of the two High Courts (western or eastern) if the subject matter of the case is of general public importance.

The general rule is that a case is allowed to be tried in two instances. However, it is possible for the High Courts to reject an appeal if there is no prospect of the court reaching a different conclusion from the district court and the appeal does not concern fundamental legal questions, or where no other reasons exist in general in favour of hearing the case before the High Court.

Appeals allowed by the Danish Appeals Permission Board cannot be rejected by the High Courts. If the case concerns a matter of general public importance, it may be appealed twice, if permitted by the Danish Appeals Permission Board, so that it will be reviewed by the Supreme Court after having been reviewed by the district court and the High Court.

The district courts will be presided over by at least one judge and the High Courts by at least three judges.

The district courts have different subdivisions according to subject matter, such as the housing court, the probate and bankruptcy courts and the bailiff’s court.

Small claims of a principal amount not exceeding 50,000 kroner are decided by the district court under simplified procedural rules, which aims to accelerate the process and extend the general availability of the courts to the public.

The Supreme Court

The Supreme Court is the court of highest instance in the legal system. Through its rulings, the Supreme Court mainly determines the guidelines for processing similar cases in the district courts and the High Courts.

The Supreme Court will be presided over by at least five judges.

The Maritime and Commercial Court and others

The Maritime and Commercial Court decides on cases concerning maritime and commercial matters with an international trade aspect, international parties, or both. Furthermore, cases concerning the Danish Trade Marks Act, the Danish Design Act, the Danish Marketing Practices Act and the Danish Competition Act are heard by the Maritime and Commercial Court. In addition, the bankruptcy division of the Maritime and Commercial Court hears cases concerning bankruptcy, suspension of payments, compulsory debt settlement and debt rescheduling arising in the greater Copenhagen area. Decisions from the Maritime and Commercial Court may be appealed directly to the Supreme Court. In addition to the above-mentioned courts, there are also specialist courts, such as the Labour Court, which decides cases involving matters between employers’ organisations and trade unions.

Judges and juries

What is the role of the judge and the jury in civil proceedings?

The system is based on the adversarial approach, where judges have a passive role and are only to judge on the basis of the facts and evidence presented by the parties in court during the proceeding. It is not possible for the court to render a decision based on evidence that has not been presented by the parties. Besides delivering judgment, judges also head the trial and oversee the process. During witness testimony, judges are allowed to question the witnesses.

Judges are obliged to guide a party who is not legally represented when needed. This guidance covers only procedural issues and does not include legal advice regarding the merits of the case. In small claims cases under 50,000 kroner, the guidance of the judge is extended to also consider the merits to accelerate the process.

Juries are only involved in some types of criminal cases and not in civil law proceedings.

It is a possibility in some cases to use expert lay judges if the case calls for specific knowledge and if the courts find it relevant. Such a request must be made within a short period of time after the initiation of the case, and no later than at the pretrial hearing.

The selection process for the judges is handled by the Judicial Appointment Council, an independent council with the task of submitting recommendations to the Minister of Justice regarding the appointment of judicial posts. It follows from article 43 of the Administration of Justice Act that recruitment is based on an overall assessment of the candidates’ qualifications for the post in question. This will place a decisive emphasis on the applicants’ legal and personal qualifications. The breadth of the applicants’ legal basis of experience must also be emphasised, and it should be included in the assessment that judges should have different legal backgrounds.

Limitation issues

What are the time limits for bringing civil claims?

As a main rule, there are no specific time limits for bringing civil claims under the Administration of Justice Act, and all claims can be brought before the court, as long as the claim itself has not ceased to exist (eg, due to the lapse of a time-limitation period).

The limitation period for monetary claims is determined in the Danish Limitation Act (chapters 3-4), and is, as a general rule, three years although it may be extended to 10 years. The limitation period begins at the earliest time when the claim could be made.

Parties are free to agree to suspend the limitation period if the agreement is regarding an identified claim. A general waiver of the limitation periods is not possible under Danish law.

In some specific cases, a time limit exists if the lawsuit follows a decision by an administrative board or a special tribunal. Examples include decisions made by a municipality’s rental board. Such decisions have to be brought before the courts no later than four weeks after the decision was made. A similar time limit of eight weeks applies for decisions made by the Public Procurement Board before the courts. If the deadline expires, the decision of the administrative board is final.

The courts will not ex officio try the above limitations when the case is filed. A party who has a case filed against him or her beyond any time limit must raise the issue in their first written reply in the dispute. The matter may then be subject to a separate formality proceeding at the sole discretion of the courts.

Pre-action behaviour

Are there any pre-action considerations the parties should take into account?

As a main rule, there are no definite pre-action considerations to be taken into account before commencing proceedings by filing a writ of summons with the court.

An exception to the main rule is monetary collection claims. As a pre-action consideration, the claimant must submit a demand by letter to the debtor with a deadline for payment of at least 10 days and information that further costs will be imposed if payment is not made. If the requirement is not fulfilled there will be a cost issue, as the creditor will not be able to claim full costs of the case. Furthermore, in cases for collection of rent, there is a special requirement involving the notice given to the tenant.

The parties may request a pretrial expert opinion to be made before filing a claim. These opinions will be allowed to be presented to the court in a later trial regarding the merits of the dispute. The option is relevant in many situations where there is a special need to secure evidence for the claim. This could be in situations where the object of the expert opinion (eg, perishable goods) may not exist when the actual trial takes place.

Starting proceedings

How are civil proceedings commenced? How and when are the parties to the proceedings notified of their commencement? Do the courts have the capacity to handle their caseload?

Proceedings are commenced by handing in a writ of summons stating the claim, the factual aspects of the dispute, the legal arguments, evidence and suggestions from the claimant as to the form of the proceedings in court (the number of judges, expert lay judges, etc). Also included are the exhibits on which the case is to be based. The writ of summons must be handed in via an online platform provided by the Danish Courts Administration.

The plaintiff must at the same time transfer a court fee, the size of which is based on the claim. When the case is scheduled to be heard at the final hearing, a second court fee of the same amount is to be paid.

The writ of summons is then served on the defendant digitally, which requires the defendant to sign off digitally. If the defendant does not sign off digitally, the writ is served by a judicial officer. This must be done in person to the defendant or to a member of his or her household. If the defendant is not a person, it must be served on the head of the legal entity or on an authorised staff member. It is possible for the court to make use of different serving mechanisms, including letters, telephone notices, digital communications and personal notifications.

The process is handled by the court. After the writ of summons has been served, the defendant is granted at least two weeks to submit the defence. The court informs the parties via the digital platform.

For small claims of a principal amount not exceeding 50,000 kroner the process is significantly simplified. For all claims under 50,000 kroner utilising the small claims process, the fee is a one-time payment of 500 kroner.

The courts monitor their capacity and aim to handle all cases within the shortest period of time. In situations, where there is a capacity problem, the courts have usually recruited more judges or referred the cases to other venues. There is currently no issue regarding the capacity of the Danish courts.

Timetable

What is the typical procedure and timetable for a civil claim?

Civil claims begin with the plaintiff filing a writ of summons in the court of jurisdiction via the digital platform. The court will then serve the writ on the defendant. From the time of service of the writ of summons, the defendant normally has two weeks to file a statement of defence. Any deadlines are clearly stated when viewing the case on the digital platform.

If a petition for extension is not filed, the defendant shall state his or her defence in a reply within two weeks. Following this initial upload of documents to the digital platform, the parties may upload further written replies and rejoinders. The courts oversee this process and set appropriate deadlines for these replies, taking the specific situation into account. Typically, a party is given a deadline of three to four weeks. This may be extended at the request of the party.

The courts may also offer the parties court-based mediation. For further information see the Danish Administration of Justice Act (Chapter 27). Participation in mediation is voluntary and requires the acceptance of both parties. Should one party turn down the offer, this will not harm the party in a subsequent court case.

If deadlines are not met, the court might decide to render a default judgment or decide on issues to the detriment of the party breaching the deadline.

When the initial documents and arguments are exchanged, the court may call the parties to a pretrial hearing during which the parties are to discuss the legal and factual conditions of the case. The rest of the procedure is also to be scheduled, including the date for the hearing of the case. It is intended that specific requests for evidence, hereunder expert opinions, are to be handled at this meeting.

The parties are usually free to produce more arguments and evidence up to four weeks before the scheduled hearing.

In most cases the court will ask for a case summary. This document specifies legal arguments and production of evidence, including a list of witnesses. Typically, the summary shall be delivered no later than two weeks before the case is heard.

Following the hearing, the court has up to four weeks in the district court, and eight weeks in the High Courts, to deliver the ruling. The ruling is given in writing, and shall contain a short summary of the proceedings and the arguments on which the court based its ruling. Typically, the arguments are quite short.

Case management

Can the parties control the procedure and the timetable?

As a main rule, the parties have the freedom to control the timetable and procedure of the dispute before the court.

The Administration of Justice Act sets out a number of guidelines to be followed in the event that the parties cannot agree. These also act as default procedures in the event that the parties do not decide on the procedure. If the parties, for example, agree to stay the proceedings due to settlement negotiations or to await a rule in another dispute, the court will accept this.

The only limitation on the parties’ autonomy is the courts’ obligation to handle proceedings within a reasonable time frame in accordance with the European Convention of Human Rights, article 6. In practice, the courts will thus not accept extensions, even if agreed between the parties, for unlimited periods of time. If one party has an interest in finalising the dispute, however, the court will then have to enforce one or even a number of strict deadlines. If the deadlines are not met, this will result in either a default judgment or decisions on factual, formal or evidential issues to the detriment of the party not meeting the deadline(s).

Evidence – documents

Is there a duty to preserve documents and other evidence pending trial? Must parties share relevant documents (including those unhelpful to their case)?

There is no general obligation to preserve documents or evidence pending a trial. However, in accordance with legislation concerning bookkeeping and tax, there is an obligation to preserve financial statements and documents for at least five years.

Parties must share documents on which they base their claim or defence. This is part of the presentation of material to the court. This does not include an obligation to submit potentially damaging documents on their own initiative.

If a party believes that the other party is in possession of relevant documents for the claim or defence, the party may ask for an order of discovery of documents. The party asking for such an order must specify the need for the documents and make it plausible that the other party is in possession of the documents. If an order is given and the party fails to produce the documents, this may work to the detriment of the party.

A Danish order for the discovery of specific documents is unlike the Anglo-Saxon regime of discovery.

Evidence – privilege

Are any documents privileged? Would advice from an in-house lawyer (whether local or foreign) also be privileged?

Certain documents are privileged. This includes documents containing information on:

  • state information from public employees without permission from the relevant authority;
  • information that has come to the attention of priests, doctors, defence attorneys, court mediators and attorneys in the exercise of their duties;
  • persons connected to a party; and
  • journalists regarding their sources, etc.

Regarding in-house lawyers, the issue is now settled following the Akzo Nobel/Across ruling (European Court of Justice C-550-07). The following information from both national and foreign in-house lawyers and advisers can be seen as privileged:

  • correspondence exchanged with external legal advisers;
  • internal notes reporting the content of a message from or to an independent lawyer; and
  • preparatory documents, even if they have not been exchanged with an external lawyer, but only if the company can demonstrate that these documents were created with the sole purpose of seeking legal advice from a lawyer in exercise of the right of defence.

The court has the final decision regarding whether a document is privileged.

Evidence – pretrial

Do parties exchange written evidence from witnesses and experts prior to trial?

The parties do not normally exchange written evidence prior to the trial. If a case requires an expert opinion, the opinion may be produced pretrial and it is exchanged prior to the trial.

Evidence – trial

How is evidence presented at trial? Do witnesses and experts give oral evidence?

As a main rule, evidence at trial must be given as oral evidence. In second instance cases, the testimony given by the witnesses will be used as a starting point for additional questions for the witness. In cases before the Supreme Court, testimony is presented in a written transcript of the oral testimony. If there is a need for additional witness testimony, the Supreme Court has to allow such steps.

Hearings start with the claimant presenting the case, including a recital of the documentary evidence. Written evidence is thus read aloud wholly, or just the relevant parts, at the presentation of the dispute to the court. Afterwards, witness testimony is given with the possibility of cross-examination and questions from the judges. Witnesses are not allowed to be in the courtroom prior to giving testimony.

As a main rule, expert witnesses must also give their statement orally before the court. As part of the expert statement, however, a written statement answering specific questions is usually given by the expert. Therefore, the testimony given by an expert witness will be based on the written statement, which is then reaffirmed before the court. If the parties do not wish to ask additional questions, the expert is not called to give an oral statement, as it would be irrelevant evidence.

Interim remedies

What interim remedies are available?

As interim remedies, the parties are able to file for injunctions ordering parties to cease or commence certain actions. Further, the parties may also file for search orders.

For all interim remedies, the party asking for the measure must prove or make it plausible that the injunction or order shall be filed so as not to further damage the party, and additionally prove or make it plausible that if the injunction or order is not made, the purpose is missed.

Following any interim remedy, a lawsuit must be filed confirming the interim injunction. The deadline for this is two weeks if it involves prohibition of certain actions, and one week with the freezing of assets.

The remedies are fully available to support foreign proceedings if they fulfil the requirements for a national remedy.

Remedies

What substantive remedies are available?

The parties have two types of claims available as substantive remedies.

The main one is a claim for damages suffered in the form of a claim for payment, including the payment of a contract price, a reduction in price and damages.

The second remedy is a claim for a party to recognise an obligation to do or not do certain actions, or to recognise the rights of a party.

Parties cannot ask for punitive damages as they may in the Anglo-Saxon legal tradition. Damages are only awarded based on actual losses suffered and proven.

The only exception is if the parties have agreed on a certain penalty clause in a contract. Such a penalty may, however, not exceed what is fair. If it is seen to be unfair it can be declared to be void.

If a claim for interest is made by the party with regard to a claim for payment, it can be awarded. On monetary claims, interest is claimed from the filing of the cases until payment is made. If the claim prior to the filing has also incurred interest, this will be calculated until the filing of the case and included in the claim.

Enforcement

What means of enforcement are available?

If court decisions are disobeyed regarding payment and actions, the party making the claim may have it enforced though the bailiff’s court, which has the right to use necessary force. The bailiff can execute a levy against the debtor’s property or place the creditor in the possession of specific items, including real property.

A claim for payment is, as a main rule, enforceable two weeks after the judgment is made, if the decision has not already been appealed.

Public access

Are court hearings held in public? Are court documents available to the public?

Court hearings are generally open to the public and only limited by the physical limitations of the actual courtroom.

In exceptional circumstances, the court may decide that only parties to the case may attend the hearing. For example, cases involving divorce or legal separation are never held in public. Aside from this, it would be rare for court proceedings to be closed to the public.

Anyone is free to review the conclusion of a judgment if a request is made within one week after the judgment is delivered. More information is available under section 41a of the Administration of Justice Act. Typically, only the conclusion of the ruling is made available to the public. Court replies, pleadings and written evidence are not available.

Costs

Does the court have power to order costs?

As part of any ruling, the court will decide on the matter of costs.

The awarding of costs is based primarily on the value of the dispute. The court will consider, among other things, the amount of time spent during pretrial hearings and during the final hearing, the complexity of the case, and the extent and inclusion of experts.

The High Courts have produced a memorandum containing guidelines and fee bands for civil cases, which the district courts adhere to. The memorandum can be found on the courts’ webpage. Decisions on costs may be appealed separately without appealing on the merits of the case, as long as the decision regards an amount higher than 20,000 kroner. If the amount is at or below that amount, it would be necessary to apply for a permission to appeal the cost issues. Such an application would have to be made within two weeks after the decision.

Security need not be provided for the defendant’s cost. If the claimant is a foreign national from outside the European Union, the court may require that the claimant post security for the potential costs of the defendant, if the defendant demands this in its defence statement. Furthermore, a narrow exception is applicable if the claimant is a company with limited liability and considered to have been potentially established to avoid paying cost if the case is lost. In that situation, the court could decide that security must be provided.

In general, the amount of costs awarded in civil disputes does not cover the actual costs incurred by the parties. Even a successful party must thus expect to pay additional costs in larger disputes.

There are no new rules on the question of cost, but the topic is, as always, discussed by lawyers.

Funding arrangements

Are ‘no win, no fee’ agreements, or other types of contingency or conditional fee arrangements between lawyers and their clients, available to parties? May parties bring proceedings using third-party funding? If so, may the third party take a share of any proceeds of the claim? May a party to litigation share its risk with a third party?

As a general rule, lawyers may not claim a fee that is larger than that which is fair in relation to the case, taking into consideration the importance of the claim to the client, the size of the claim and the nature and amount of work that has been included. This is based on the principle in article 126(2) of the Administration of Justice Act.

As long as the fee is seen as fair, the lawyer is allowed to make any fee agreement he or she wishes. This will include monetary success fees of all types. The only limitation is that a lawyer may not receive a fixed part or percentage of an award given.

Agreements regarding third-party funding are possible. However, they are not used in practice.

Factoring is more commonly used, where the claim is sold to a professional party.

Insurance

Is insurance available to cover all or part of a party’s legal costs?

Insurance is available and quite common. Insurance will usually cover the legal expenses of the policyholder and the legal costs awarded to the opponent.

Most insurance is subject to maximum coverage and self-excess. Further, the costs covered are usually limited to the costs awarded by the court. If additional costs are incurred, the policyholder must bear these costs. Insurance is available to both private individuals and commercial entities.

Class action

May litigants with similar claims bring a form of collective redress? In what circumstances is this permitted?

Denmark introduced the possibility of class actions in 2008. According to the Administration of Justice Act, section 254b, subsection 1, a class action may be brought when:

  • several persons have uniform claims against the same individual or entity: see section 254a;
  • all claims have jurisdiction in Denmark;
  • the court has jurisdiction over one of the claims;
  • the court has subject-matter jurisdiction regarding one of the claims;
  • class action is deemed to be the best way of dealing with the claims;
  • the class action members may be identified and informed about the case in a suitable manner; and
  • a representative for the class action may be appointed: see section 254c.

A class action is conducted by a representative appointed by the court on behalf of the class. The system is based on the opt-in principle, contrary to the out-up principle known in the US. Only the parties who have signed up and actively joined the lawsuit are included.

Furthermore, parties with similar claims or multiple claims between parties (or their affiliated entities) may be handled during the same proceedings. This is a way of limiting the litigation costs. Each dispute will result in a separate ruling.

There are no developments in the procedural rules for class actions but more class actions are being filed.

Appeal

On what grounds and in what circumstances can the parties appeal? Is there a right of further appeal?

As a main rule, judgments in civil cases may be appealed once to the court of instance one above. Judgments made by the district courts may be appealed to the High Courts, and judgments made by the High Courts and the Maritime and Commercial Court as court of first instance may be appealed to the Supreme Court.

The High Courts have access to reject appeals, regardless of the economic value, unless the parties have indicated conditions that make it likely that the case may have a different outcome than in the district court.

Parties appealing judgments involving claims of under 20,000 kroner must obtain a special permit from the Appeals Permission Board in order to appeal.

Appeal from the district courts to the High Courts must be done within four weeks of the judgment being given or from the time, where the Appeals Permission Board approved the application for an appeal. The same rules apply to appeals from the High Courts to the Supreme Court.

A default judgment cannot be appealed, although the case can be reopened if a request is made within four weeks and in special circumstances up to one year after the judgment.

Permission for a second appeal may, upon application, be given by the Appeals Permission Board. The permission is only given in special circumstances and if the case deals with matters of importance and principle.

Foreign judgments

What procedures exist for recognition and enforcement of foreign judgments?

A foreign ruling will be recognised and enforced in Denmark if either a convention or national Danish rules granting recognition provide for recognition. The Minister of Justice has been authorised by the Administration of Justice Act, sections 223a and 479, to implement regulations regarding granting recognition and enforceability. The authorisation has, however, never been exercised by the Minister of Justice, and the recognition of foreign civil judgments is, therefore, currently only regulated by international treaties and conventions.

A judgment from a country within the European Union (or EFTA) is, as a main rule, enforceable in Denmark. (See article 33 of the Brussels I Regulation, which lays down rules governing the jurisdiction of courts and the recognition and enforcement of judgments in civil and commercial matters in EU member states.)

Denmark is also a signatory of the Lugano Convention, which came into effect in Denmark on 1 March 1996. The Lugano Convention extends the sphere of mutual recognition and enforcement of civil judgments beyond the borders of the EU, encompassing six of the then-seven member states of EFTA (Austria, Finland, Iceland, Norway, Sweden and Switzerland, explicitly excluding the then-seventh member, Liechtenstein). As is the case with the Brussels I Regulation, the Lugano Convention solely regulates the recognition and enforcement of civil judgments among EU member states and three of the four member states of EFTA, namely, Iceland, Norway and Switzerland.

Between the Nordic countries, recognition is regulated by the Nordic Convention on the Recognition of Civil Judgments of 1933.

If a reciprocal agreement does not exist, a judgment issued in a country outside of the EU or EFTA will, as a main rule, not be enforceable in Denmark.

There are also specific conventions relating to, inter alia, family law, succession law, and bankruptcy.

Foreign proceedings

Are there any procedures for obtaining oral or documentary evidence for use in civil proceedings in other jurisdictions?

Denmark is a party to the 1970 Hague Convention on the Collection of Evidence Abroad in Civil or Commercial Matters, through which courts in other ratifying states may request evidence taken in Denmark. The rules apply if a formal request is made by a foreign court.

Arbitration

UNCITRAL Model Law

Is the arbitration law based on the UNCITRAL Model Law?

The Arbitration Act of 2005 is primarily based on the UNCITRAL Model Law of 1985 with some differences. For example, there are no formal requirements to an arbitration agreement in section 7 of the Arbitration Act. Further, it should be mentioned that the Arbitration Act has not been updated with regards to the 2006 amendments of the UNCITRAL Model Law.

Arbitration agreements

What are the formal requirements for an enforceable arbitration agreement?

Parties may enter into an arbitration agreement both before and after a dispute has arisen. There is no in-writing requirement under the Arbitration Act; however, there might be lex specialis laws that require otherwise, such as the Merchant Shipping Act. Arbitration agreements are not valid in contracts with consumers.

Furthermore, under the New York Convention of 1958, there is an in-writing requirement. Arbitration agreements entered into in Denmark thus need to be in writing in order to be enforced under several other jurisdictions.

Choice of arbitrator

If the arbitration agreement and any relevant rules are silent on the matter, how many arbitrators will be appointed and how will they be appointed? Are there restrictions on the right to challenge the appointment of an arbitrator?

The parties are free to determine the number of arbitrators. If no agreement has been reached, arbitration will consist of three arbitrators (see section 10, subsection 2 of the Arbitration Act). If the parties have agreed upon institutional arbitration, the number of arbitrators will be determined by the chosen institution.

If the parties have not agreed upon the appointment of arbitrators, as a main rule each party appoints one arbitrator within 30 days after having received a request from the opposing party. The two party-appointed arbitrators thereafter appoint the chair within 30 days after being appointed (see section 11, subsection 2 of the Arbitration Act). If the party-appointed arbitrators cannot agree upon the chair, each of the parties may request that the national courts appoint the remaining arbitrator or arbitrators (section 11, subsection 3).

The appointment of an arbitrator may only be challenged if circumstances exist that give probable cause to believe that the arbitrator is not impartial or independent, or if the arbitrator does not possess the qualifications to which the parties have agreed (section 12, subsection 2 of the Arbitration Act).

Furthermore, a party cannot challenge the appointment of its party-appointed arbitrator if the grounds for doing so were known at the time of appointing the arbitrator.

Arbitrator options

What are the options when choosing an arbitrator or arbitrators?

The number of arbitrators and the qualifications depend on the arbitration institution designated in the arbitral clause. The Danish Institute of Arbitration handles cases of all subject matters and has a pool of candidates, which is deemed sufficient to meet the needs of complex arbitration. It could be considered that Denmark is a small jurisdiction, which could potentially lead to difficulties in finding qualified arbitrators. This is not the case.

Arbitral procedure

Does the domestic law contain substantive requirements for the procedure to be followed?

Under the Arbitration Act, the only mandatory provisions in regard to the procedure are that each party shall be treated equally and that each party shall be given full opportunity to present its case (see section 18 of the Arbitration Act).

Court intervention

On what grounds can the court intervene during an arbitration?

As a general rule, the court has no competence in disputes that are to be settled by arbitration (see section 4 of the Arbitration Act). However, there are exceptions in the Act.

If requested by a party, the court may implement interim remedies or enforcement, even though according to the agreement the dispute is to be settled by arbitration (see section 9).

Furthermore, the court may intervene in matters of appointing arbitrators (see section 11, subsection 3), objections against the arbitrator (section 13, subsection 3) or the competence of the tribunal (see section 16, subsection 3), or orders as to costs (section 34, subsection 3).

Regarding the arbitration award, the court may set aside the award in accordance with the rules in section 37, subsection 2-4, for example, if the dispute, owing to its nature, cannot be settled by arbitration.

Interim relief

Do arbitrators have powers to grant interim relief?

Yes. At the request of a party, the arbitrators have the power to grant interim relief (section 17 of the Arbitration Act). However, the arbitrators cannot enforce it. In order for a party to enforce interim relief, a request must be submitted to the national courts, which thereafter will hear the dispute on that matter.

The fact that the dispute according to the parties’ agreement should be settled by arbitration does not bar the national courts from hearing the dispute regarding interim relief (see section 9 of the Arbitration Act). Consequently, a party may obtain a freezing order or an injunction in accordance with the provisions of the Danish Administration of Justice Act.

Moreover, a party may also be granted an order of enforcement, providing that the conditions under the Danish Administration of Justice Act are met.

Award

When and in what form must the award be delivered?

The award is to be made in writing, and is to be signed by the arbitrator or the arbitrators (see section 31 of the Arbitration Act). Furthermore, it must state the date and the place of arbitration. Lastly, after the award has been made, a copy is to be signed by the arbitrators and delivered to each party.

The time limit for receiving the copy is primarily relevant with regards to section 33, concerning corrections of errors in computation, typographical errors, etc, within 30 days.

Moreover, each party may, unless otherwise agreed within 30 days after receiving the award, request that the tribunal issue additional awards regarding claims presented during the proceedings (see section 33, subsection 3).

Appeal

On what grounds can an award be appealed to the court?

An arbitral award is final and cannot be appealed to the court. The national court enforces the award; however, pursuant to section 37 of the Arbitration Act, an award may be rendered unenforceable if certain conditions are met (for example, if the tribunal was not competent in accordance with the arbitration agreement). Section 37 of the Arbitration Act is, with few alterations, an adoption of article 34 of the UNCITRAL Model Law.

Additionally, an award may be set aside if a court finds that the subject matter of the dispute is not eligible for settlement by arbitration, or if the award is manifestly contrary to public policy in Denmark.

Enforcement

What procedures exist for enforcement of foreign and domestic awards?

Denmark is party to the New York Convention of 1958. The rules of enforcement of foreign awards have been adopted into the Arbitration Act and, pursuant to section 38, both Danish and foreign arbitration awards are enforceable in Denmark. Awards from states not party to the New York Convention of 1958 are also enforceable in Denmark (see section 38 of the Arbitration Act).

A request for enforcement shall be sent to the court governing the jurisdiction where the party in breach has his or her residence or place of business. The request shall be in writing and include a duly certified copy of the award and of the arbitration agreement, if it is in writing.

If the award is not in Danish, the court will require a duly certified Danish translation.

The bailiff’s court may refuse enforcement if one of the conditions mentioned in section 39 of the Arbitration Act is met; this section is based on article 36 of the UNCITRAL Model Law.

There are no changes in the options regarding enforcement.

Costs

Can a successful party recover its costs?

Rules about costs are governed by the Arbitration Act, part 7. The parties are jointly and severally liable for the costs of the arbitration tribunal (see section 34, subsection 2 of the Arbitration Act). The arbitration tribunal will allocate the costs to the parties and may choose to award one of the parties some or all of the costs (see section 35).

Alternative dispute resolution

Types of ADR

What types of ADR process are commonly used? Is a particular ADR process popular?

The commonly used types of ADR are mediation and court-based mediation. To solve a dispute by regular mediation, the parties are brought together using a non-court-based mediator.

The court must decide whether a case may be conciliated and only if the court assumes the result would be negative may it abstain from conciliation.

Requirements for ADR

Is there a requirement for the parties to litigation or arbitration to consider ADR before or during proceedings? Can the court or tribunal compel the parties to participate in an ADR process?

There are no requirements for the parties to consider ADR before or during proceedings. Neither a court nor a tribunal is in a position to compel the parties to participate in ADR proceedings, but they may suggest it.

Miscellaneous

Interesting features

Are there any particularly interesting features of the dispute resolution system not addressed in any of the previous questions?

No.