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Outline and explain the general structure of your country’s court system as it relates to the commercial appellate process.
Denmark’s court system is a national system consistent throughout the whole country, comprising:
- the Supreme Court;
- two high courts (the Eastern and Western High Court);
- the Maritime and Commercial Court;
- the Land Registration Court;
- 24 district courts; and
- the courts of the Faroe Islands and Greenland respectively (this article will not deal with the courts of the Faroe Islands and Greenland as they have autonomous court systems).
The administration of the court system is supervised by the Judicial Appointments Council, and the Court Administration.
The legislation for appeal regulating Danish litigation is described in the Administration of Justice Act.
The courts are divided into a three-tier hierarchy. The lowest courts are the 24 district courts located throughout the regions of Denmark.
A trial will usually start in one of the 24 district courts. A trial can also start in the Maritime and Commercial Court (see question 5) or in either of the high courts. Generally, all cases can be tried in two instances; in some cases, even three. A judgment rendered by a district court acting as a first instance can be appealed to the high courts and, if permission is granted by the Appeals Permission Board, the relevant high court’s judgment can be appealed to the Supreme Court.
The Land Registration Court treats registrations of deeds, titles, mortgages etc. All registrations of such a nature are treated by the Land Registration Court, regardless of the geographical location. The Maritime and Commercial Court treats cases relating to trademarks, international cases, marketing law and commercial and maritime matters (see question 5).
Are there appellate courts that hear only civil matters?
The district courts, the high courts and the Supreme Court hear both commercial and criminal cases alike. As a main rule, the Maritime and Commercial Court and the Land Registration Court only deal with commercial and civil matters.
Appeals from administrative tribunals
Are appeals from administrative tribunals handled in the same way as appeals from trial courts?
An administrative decision can be brought before the courts, which is done as a civil suit, where the private party sues the administrative agency that issued the disputed decision. Denmark does not have special courts for trying administrative decisions, and as such, the decisions are brought before the normal Danish courts, starting in the district courts.
Representation before appellate courts
Is there a separate appellate bar or other requirement for attorneys to be admitted before appellate courts?
All Danish attorneys have the right to appear before the district courts.
In order to gain the right to appear before the high courts and in all cases before the Maritime and Commercial Court, the attorney must pass a second bar exam by conducting two pre-approved trials before either of the two high courts or the Maritime and Commercial Court.
An attorney must work for at least five years with the right to appear before the high courts and the Maritime and Commercial Courts, before being able to apply for admission to practice before the Supreme Court. The attorney must then attain a declaration from a high court, acknowledging the attorney’s skills as a litigator. Upon granting this declaration, the quality and quantity of the attorney’s cases are considered. As a rule, the attorney must, in the high courts, have conducted at least 10 cases within the five years leading up to the application.
Authorised assistant attorneys can appear before the district courts. An assistant attorney can only take part in the main oral proceedings in a case before the high courts, if he or she has been granted a permit to litigate by a high court. An assistant attorney cannot appear before the Supreme Court during the main oral proceedings.
If separate jurisdictions exist for particular territorial subdivisions or subject matters, explain their main differences as to commercial appeals.
As a general rule, a trial will typically start in the district court administering the judicial district in which the defendant’s domicile is located. Appeals originating from the Jutland peninsula are treated by the Western High Court, while appeals from the remaining judicial districts in Denmark are treated by the Eastern High Court.
The Maritime and Commercial Court differs from the district courts and the high courts, since it wields a special competence relating to maritime and commercial matters. Cases relating to international cases, trademarks, marketing practices, competition disputes and limitation funds (maritime law) must be brought before the Maritime and Commercial Court. Cases regarding insolvency and bankruptcy arising in the greater Copenhagen judicial district must also be brought before the Maritime and Commercial Court.
Judgments from the Maritime and Commercial Court are appealed to the high courts. Judgments that can be appealed directly to the Supreme Court from the Maritime and Commercial Court are as follows:
- a precedent setting;
- have a general impact on the development and application of law; or
- have a significant impact on society.
If a party to a case appeals the Maritime and Commercial Court judgment to a high court, the opposing party can demand that the judgment is appealed to the Supreme Court instead if the abovementioned conditions are met. The Supreme Court ensures ex officio that the conditions for the appeal are met.
Bringing an appeal
What are the deadlines for filing an appeal in a commercial matter?
The deadline within which an appeal of a judgment must be submitted is four weeks, regardless of whether the appeal is made from a district court to a high court or from a high court to the Supreme Court.
In exceptional cases, the appellate court can permit an appeal up to one year after the judgment has been rendered (leave to appeal out of time). If an appeal is permitted, the appealing party is given four weeks to submit a notice of appeal, the deadline starting at the date of the grant of the permission to appeal.
In the event of a failure to meet the appeal deadline, permission to appeal is only given where mitigating circumstances can excuse the delay.
The Supreme Court can grant a permission to appeal even after the one-year deadline to appeal out of time has expired. The exceptional permission can be granted when:
- the facts of the case have been presented erroneously (not at the fault of the appellant) and when it is probable that a grant of appeal will lead to a substantially different outcome of the case;
- appealing the judgment is the only way for the appellant to avoid suffering a significant loss; and
- when the circumstances otherwise highly favour a permission to appeal.
Not all district court judgments can be appealed to the high courts. If the claims relating to a case in total do not exceed 20,000 Danish kroner, permission to appeal must be applied for at the Appeals Permission Board. The deadline for the submission of an application for the Appeals Permission Board’s permission to appeal a judgment is four weeks after the passing of the judgment. If permission to appeal is granted, the appealing party must then submit a notice of appeal within four weeks of the day of the grant.
Similarly, an application to the Appeals Permission Board for permission to appeal a high court judgment to the Supreme Court must be submitted within four weeks of the passing of the high court’s judgment. If permission to appeal to the Supreme Court is granted, the appealing party must submit a notice of appeal within four weeks of the date of the permission.
The appeal of a district court or Maritime and Commercial Court order or non-final (interlocutory) decision to the high courts must be submitted within two weeks of the day on which the order was passed.
The court treating the non-final appeal can, exceptionally, permit an appeal submitted within six months after the judgment. It is sufficient that the appeal request is submitted within the six-month deadline. If leave to appeal is granted, the appealing party must submit his or her (interlocutory) notice of appeal within two weeks.
Similarly to the court judgments, if the total claims relating to a case do not exceed 20,000 Danish kroner, permission to appeal a court order or non-final decision must be applied for at the Appeals Permission Board. The same procedure applies to any court orders or non-final decisions issued during the final court hearing or its preparation. The deadline for the submission of an application for the Appeals Permission Board’s permission to appeal a court order or non-final decisions is two weeks after the passing of the order or non-final decisions. In some exceptional circumstances, the Appeals Permission Board can grant permission to appeal when the application is submitted up to six months after the court order or non-final decisions is passed. If permission to appeal is granted, the appealing party must submit a notice of appeal within two weeks of the day of the grant.
Applications to appeal court orders or non-final decisions passed by the high courts to the Supreme Courts, when the high courts are treating the case as a court of first instance, must be submitted to the Appeals Permission Board within two weeks after the passing of the court order or non-final decisions. If the application concerns appealing an ordinary court order or non-final decisions, the submission deadline is two weeks as well; however, the notice of appeal must submitted within two weeks, if permission to appeal is granted.
What are the key steps a litigant must take to commence an appeal?
The rules described herein apply similarly to appeals before the high courts and the Supreme Court.
The appeal is initiated by the submission of a notice of appeal to the appellate court. The notice of appeal must contain:
a specification of the case concerning the notice;
- the address of the appellee;
- the claims of the appellant;
- a specification of the new statements, documents and evidence not brought before the lower court; and
- a postal address within the European Economic Area (EEA) where messages to the appellant can be delivered and served.
The notice of appeal must be accompanied by an authenticated transcript of the original judgment.
After being served with the notice of appeal, the appellee must respond with an appellee’s brief, unless he or she requests for the judgment to be upheld without presenting new evidence. The appellee’s brief must contain new claims, statements, documents and evidence not brought before the lower court. As a main rule, digital services are used.
How is the documentation for appeals prepared?
The lower court is responsible for preparing and transmitting the records to the appellate court.
Right of appeal
Discretion to grant permission to appeal
In commercial matters, may litigants appeal by right or is appellate review discretionary?
The Danish legal system is based on the two-tier principle, meaning that a case generally can be tried before two courts. Therefore, the main rule is that litigants are entitled to appeal as a matter of right. There are, however, two exceptions:
- when the total claims relating to a case do not exceed 20,000 Danish kroner, permission to appeal must be applied for at the Appeals Permission Board; or
- a high court can dismiss a case if it seems highly unlikely that the appeal will lead to a different result than the one reached by the district court, if the case is not of general public importance and if no other significant reasons to allow the appeal exist.
Judgments passed by the high courts (when a high court acts as a court of first instance) can be appealed to the Supreme Court, without exception.
Judgments passed by the high courts as a court of second instance, cannot be appealed to the Supreme Court. However, the Appeals Permission Board can permit the appeal of a high court judgment to the Supreme Court. Permission is granted when a case is of general public importance.
Judgments made by the Maritime and Commercial Court can be appealed to a high court, without exception. Judgments made by the Maritime and Commercial Court can also be appealed to the Supreme Court, if the case is of general public importance, is precedent-setting, or if other reasons to allow the appeal exist (see question 5).
Judgments subject to appeal
Can litigants appeal any ruling from a trial court, or are they limited to appealing only final judgments?
Interim rulings can be appealed as well as final judgments. However, interim rulings can only be appealed before the final judgment when the case has been rendered, if:
- the interim ruling is enforceable; or
- the Appeals Permission Board has approved the separate appeal of the interim ruling. Permission is only granted in special cases.
Security and interlocutory matters
Security to appeal
In a typical commercial dispute, must a litigant post a bond or provide security to appeal a trial court decision?
A bond or security is not necessary for claimants domiciled within the EEA. If requested by the defendant, claimants domiciled outside the EEA must provide security for the potential legal costs associated with the trial, unless the court finds a substantial reason to exempt the claimant from this requirement. This request can be made both in the first instance and in the appeal case.
Are there special provisions for interlocutory appeals?
Court orders and non-final decisions are appealed differently than final judgments. The method of appeal depends on whether the court order or non-final decision was rendered by a district court, a high court or the Maritime and Commercial Court.
Interlocutory appeals from the district courts
Court orders and non-final decisions rendered by a district court can be appealed to the appropriate high court, except in the case of:
- Interlocutory appeals relating to legal costs set at no more than 20,000 Danish kroner; however, the Appeals Permission Board can allow such an interlocutory appeal where exceptional reasons allow it.
- Interlocutory appeals in legal aid cases regarding an attorney’s salary set at no more than 20,000 Danish kroner; however, the Appeals Permission Board can allow such an interlocutory appeal where exceptional reasons allow it.
- Interlocutory appeals rendered by a district court during the main proceedings or during its preparation; however, the Appeals Permission Board can allow such an interlocutory appeal where the court order or non-final decision concerns a matter of significant importance to the further course of the case or is of decisive importance for the party and if other grounds to appeal the court order or non-final decision to a high court exist.
Interlocutory appeals from the high courts
Court orders and non-final decisions rendered by the high courts can be appealed to the Supreme Court with permission from the Appeals Permission Board. Permission is only granted in cases where the appealed court order or non-final decision concerns a matter of precedent setting nature, except when the court order or non-final decision is rendered as an interim ruling. The approval of the appeal of an interim ruling by the Appeals Permission Board depends on the existence of special reasons to appeal.
The conditions for interlocutory appeals from the Maritime and Commercial Court are the same as from the high courts.
Injunctions and stays
Are there special rules relating to injunctions or stays, whether entered in the trial court or on appeal?
Commencement of legal action in the first instance is generally not enough to legally restrain a person from acting in a certain way, or compelling that person to carry out a given act before the court case has been finally settled.
The court will not, during a court proceeding, issue preliminary rulings such as injunctions.
If a claimant wishes to restrain a responding party from a specific act, they must instead apply for an injunction during a separate proceeding.
The party requesting an injunction from the court must prove the following three conditions on a balance of probabilities:
- the requesting party holds the right for which protection is sought;
- the behaviour of the opposing party necessitates the injunction; and
- the requesting party’s ability to attain his or her right will be forfeit if the party is forced to await the final ruling in the case.
Even if the requesting party is able to prove these conditions on a balance of probabilities, the court cannot pass injunctions against a party, if the party offers security which provides the requesting party with adequate protection for his or her claim.
The court can also refuse injunctions if the injunction will cause the opposing party to suffer a disadvantage disproportionate to the requesting party’s interest in obtaining the injunction. In this case, the court can also demand that the requesting party provide security for any disadvantage suffered by the opposing party, as a condition for the grant of the injunction.
A decision by a district court or the Maritime and Commercial Court regarding the granting of an injunction can be appealed to the high courts. Appeals of decisions regarding injunctions in cases before the Maritime and Commercial Court must be appealed to a high court before which the case would have been brought, had it not been brought before the Maritime and Commercial Court.
Such an interlocutory appeal will not act as a stay of execution with regard to the courts’ decision of whether to grant the injunction unless a separate decision is made on such a stay upon request from a party.
Scope and effect of appellate proceedings
Effect of filing an appeal
If a litigant files an appeal in a commercial dispute, does it stay enforcement of the trial court judgment?
Judgment appeals stay enforcement of a court judgment against the appealing litigant, if the appeal is submitted within two weeks from the date of the judgment.
Appeal of court orders do not stay the order’s enforcement.
Scope of appeal
On an appeal from a commercial dispute, may the first-level appellate court consider the facts and law anew, or is its power to review limited?
Appellate courts have full power to consider any elements of the case de novo. There is no limitation of the appellate courts’ power to review, both in the second and third instance.
If a party is dissatisfied with the outcome of the first-level appeal, is further appeal possible?
See question 9.
Duration of appellate proceedings
How long do appeals typically take from application to appeal to a final decision?
The length of the appeal process varies greatly depending on the scope, complexity, number of parties involved, etc. Any length of time between one month and two years is common. An estimated average for the amount of time from application to final decision would be one year.
Submissions and evidence
What is the briefing and argument process like in a typical commercial appeal?
In a typical commercial appeal, the case will normally be limited to only deal with the items that gave rise to the appeal. The exchange of writs will normally be limited to the appeal writ and the defence writ. As a clear starting point the procedure will be oral in regard to the appeal of final judgments. In contrast, the appeal in regard to court orders’ non-final decisions are made on a written basis.
Are appeals limited to the evidentiary record that was before the trial court, or can new evidence be introduced on appeal?
New evidence can be introduced before the appellate court. New evidence should be specified in the notice or appeal or the appellee’s brief. If the new evidence is not specified in the notice or brief, it must be submitted to the court as soon as possible and no later than four weeks before the main hearing. The court can permit late submissions at its own discretion.
New evidence of wrongdoing
If litigants uncover new evidence of wrongdoing that they believe altered the outcome of a trial court judgment, can they introduce this evidence on appeal?
New evidence can be introduced before the appellate court, if presented in accordance with the requirements specified in question 21.
New legal arguments
May parties raise new legal arguments on appeal?
New claims and arguments can generally be raised before the appellate court. The court’s permission is required where the opposing party objects to the raising of new claims and arguments. The court can permit new claims and arguments where it is excusable that the new claims and arguments were not presented before the first instance or if there is reason to believe that denying the permission to raise the new claims and arguments will cause a disproportionate loss for the party or if it is sufficiently possible for the opposing party to safeguard his or her interests. As a main rule, it is possible to raise new claims and arguments by arguing that the opposing party is sufficiently possible to safeguard his or her interests.
The appellate court can also dismiss new claims and arguments if they expand the subject matter of the case beyond those raised before the first-instance court.
Costs, settlement and funding
What are the rules regarding attorneys’ fees and costs on appeal?
In Denmark, the general principle is that of costs following the event.
If a judgment is appealed and reversed by an appellate court, the appellant is considered the winning party and the appellee must therefore compensate the appellant’s legal fees arising from both the original case and the case before the appellate court. If a judgment is appealed but the appellate court upholds the original judgment, the appellant must pay the other party’s legal fees.
Settlement of first instance judgment after appeal lodged
Can parties enter into a settlement agreement to vacate the trial court judgment after an appeal has been taken?
Parties are always able to enter into settlement agreements, even overruling an appeal court judgment.
Limits on settlement after commencement of appeal
Are there any limits on settlement once an appeal has been taken?
May third parties fund appeals?
Third-party funding is not regulated under Danish law and is not prohibited.
Disclosure of litigation funding
If litigation funding is permitted in an appeal, must funding sources be disclosed to the court or other parties to the litigation?
There is no Danish law, nor case law, requesting the disclosure of funding sources.
Judgments, relief and non-parties
Must appellate courts in your country write decisions explaining their rulings? Can the courts designate the precedential effect of their decisions?
All Danish courts must provide a summary of the proceedings as well as the reasoning behind their rulings but Denmark does not have binding precedence.
Will the appellate courts in your country consider submissions from non-parties?
A non-party can intervene in a case to support one of the parties if the non-party has a sufficient legal interest in the case. Contrary to the typical definition of an ‘amicus’, the intervener must support one of the parties’ claims in the proceedings. Third-party intervention requires the permission of the court. Although the intervener does not become a party to the case, the intervener is able to make statements and give evidence pertaining to the case.
What are the ordinary forms of relief that can be rendered by an appellate court in a civil dispute?
Appellate courts in civil disputes generally have a number of forms of relief:
- The appellate court can dismiss the appealed case. A case can be dismissed when the appellate court does not believe hearing the case will result a different outcome than that of the previous instance and if the case is not of a precedent-setting nature, or if other reasons to appeal the case do not exist. If permission to appeal has been granted by the Court of Appeal, the appellate court cannot dismiss the case.
- The appellate court can give judgment in favour of either party, therefore either affirming or reversing the previous instance’s decision.
- If the appellate court finds that the previous instance’s decision contained serious formal errors, the appellate court can order a remission of the case for re-trial at the previous instance.
Should the appellate court find that it does not have jurisdiction to hear an appealed case, the court can refer the case to a different, equally ranking, appellate court.
Update and trends
Are there any current developments or emerging trends that should be noted?
Over the past few years, the Danish court system has undergone a considerable digitalisation process. As of 2 February, all Danish courts have implemented a new digital portal (www.minretssag.dk).
This requires parties to communicate digitally through the online digital portal, with the courts and between the parties. This includes uploading pleadings, submitting evidence and requesting appeals, which effectively removes all paper-based communication from the proceedings. Any communication outside of the digital portal will be deemed as not received by the court.
Parties are also automatically notified of deadlines, payable court fees and court decisions through the digital portal.
All civil and commercial cases are subject to the digital portal.