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Starting an arbitration proceeding
What is needed to commence arbitration?
A written request for arbitration. The parties may agree on other formal requirements in the arbitration agreement.
Are there any limitation periods for the commencement of arbitration?
No – the alleged claim may be time barred, but that does not imply that it cannot be subject to arbitration.
Are there any procedural rules that arbitrators must follow?
The Arbitration Act includes procedural principles, including fundamental principles of due process, impartiality and equal treatment of the parties. If arbitration is conducted by an arbitration institution, the institution’s rules of procedure typically contain more detailed rules than those set out in the Arbitration Act.
Are dissenting opinions permitted under the law of your jurisdiction?
Can local courts intervene in proceedings?
Not on an ex officio basis, but the arbitral tribunal can ask the ordinary courts to assist in obtaining evidence.
The parties can, without reference to the arbitral tribunal, ask domestic courts to initiate interim measures.
Can the local courts assist in choosing arbitrators?
If the parties cannot agree on formation of the arbitral tribunal according to the Arbitration Act, each party may ask the ordinary courts to appoint arbitrators.
What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration? Can the courts compel parties to arbitrate? Can they issue subpoenas to third parties?
If a respondent fails to participate, it runs the risk of the arbitral tribunal making its decision based on the other party's allegations and evidence. Tribunals have no power to issue subpoenas to third parties, but may ask the ordinary courts to assist in obtaining evidence through the court.
In what instances can third parties be bound by an arbitration agreement or award?
Only the parties agreeing to arbitration are bound by the arbitral award. While other parties may be affected, a claim against a party can be subject to arbitration only if that party has agreed to arbitration.
Default language and seat
Unless agreed by the parties, what is the default language and location for arbitrations?
This will be decided by the arbitral tribunal.
How is evidence obtained by the tribunal?
Evidence is provided by the parties. Arbitral tribunals decide what evidence is admissible and how particular evidence should be evaluated (eg, which is the strongest evidence). Tribunals can appoint an independent expert to provide a statement and give evidence on relevant matters. Moreover, tribunals may request that the ordinary courts assist in obtaining evidence. Tribunals also have authority to ask the ordinary courts to pose preliminary questions to the European Court of Justice. Arbitral tribunals rarely take steps to obtain evidence ex officio.
What kinds of evidence are acceptable?
Both written evidence (documents) and witness statements are admissible. Written witness statements may be admissible at the arbitral tribunal's discretion. There are no formal requirements for obtaining witness statements. Thus, witness statements may be given via any means (eg, teleconference) accepted by the tribunal.
Is confidentiality ensured?
The arbitrators are bound by confidentiality but the parties are not, unless confidentiality among the parties is specifically agreed in the arbitration agreement. Meetings between the arbitral tribunal and the parties are not publicly accessible, unless otherwise agreed by the parties.
Can information in arbitral proceedings be disclosed in subsequent proceedings?
Yes, unless the parties agree otherwise. That said, such agreements are difficult to uphold under Danish law if, for example, the arbitral award is subjected to invalidation proceedings.
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
Members of the Danish Bar must abide by the ethical codes, regardless of whether a case is conducted before the ordinary courts or an arbitral tribunal. Moreover, if the seat of the arbitration is in Denmark, attorneys are regulated by the Administration of Justice Act.
No specific act regulates arbitrators, apart from the general regulations set out in the Arbitration Act, according to which any arbitrator must be impartial and independent.
Estimation & allocation
How are the costs of arbitration proceedings estimated and allocated?
The arbitral tribunal decides on its own costs and those awarded to the participating parties. These costs will normally depend on the outcome (the ‘loser pays principle’ applies under Danish law and practice). The arbitral tribunal may request that the parties guarantee payment of the arbitral tribunal's costs and may terminate the arbitral proceedings if this guarantee is not furnished. Normally, the arbitral tribunal will ask the parties to deposit a certain amount with a Danish bank.
Security for costs
Can the national court or tribunal order security for costs under the law in your jurisdiction?
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