Examination of the foreign judgment

Vitiation by fraud

Will the court examine the foreign judgment for allegations of fraud upon the defendant or the court?

Fraud is a defence under the Hague Convention (article 9(d)). Consequently, recognition or enforcement can be denied if the judgment was obtained by fraud in connection with a matter of procedure. Outside the scope of this provision, there are no explicit fraud defences in any of the conventions.

However, it might be possible to examine the foreign judgment for allegations of fraud if the recognition or enforcement of the judgment would be manifestly contrary to public policy. The fraud point should probably be raised in the first court, not merely in the enforcing court. Accordingly, it will probably be possible to raise the fraud point only as a public policy defence if the fraud was only noticed after the judgment was passed in the first court.

Public policy

Will the court examine the foreign judgment for consistency with the enforcing jurisdiction’s public policy and substantive laws?

It follows from section 479 of the Administration of Justice Act that, whatever the circumstances, foreign judgments cannot be enforced if the enforcement would be obviously incompatible with the legal order of Denmark (ordre public). The same applies to the recognition of foreign judgments (section 223a).

This public policy defence to recognition and enforcement is also stated in the Brussels Regulation, the Lugano Convention and the Hague Convention. Public policy may, however, not be applied to the rules relating to jurisdiction apart from a few narrow exceptions.

The public policy defence is a very narrow exception to the mutual recognition and enforcement of judgments under the conventions. It is not sufficient that the enforcing court considers that there has been a misapplication of national or EU law.

Danish courts cannot examine the foreign judgment for consistency with Denmark’s substantive laws, as Denmark is not allowed to review a foreign judgment as to its substance.

Conflicting decisions

What will the court do if the foreign judgment sought to be enforced is in conflict with another final and conclusive judgment involving the same parties or parties in privity?

In general, a foreign judgment covered by one of the applicable conventions is enforceable as soon as the time limit for execution has expired. In Denmark, the time limit is 14 days unless otherwise stated in the judgment (section 480 of the Administration of Justice Act).

However, it follows from article 45(1)(c) and (d) of the Brussels Regulation, article 34 of the Lugano Convention and article 9(f) and (g) of the Hague Convention that enforcement may be refused if the judgment is irreconcilable with an earlier judgment given between the same parties in Denmark, or in another member state or a third state involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions for recognition in Denmark (ie, if it is governed by any of the conventions mentioned).

Consequently, Danish courts will on a request from a party refuse to enforce a foreign decision if it is irreconcilable with a judgment given between the same parties in Denmark, or to an earlier recognisable judgment given between the same parties on the same cause of action.

Enforcement against third parties

Will a court apply the principles of agency or alter ego to enforce a judgment against a party other than the named judgment debtor?

Not applicable.

Alternative dispute resolution

What will the court do if the parties had an enforceable agreement to use alternative dispute resolution, and the defendant argues that this requirement was not followed by the party seeking to enforce?

The Danish courts may, at the request of the parties, offer court mediation (Chapter 27 of the Administration of Justice Act). The mediation may at any point be put to an end at the request of one of the parties. Consequently, mediation cannot be imposed on the parties. It could indeed be argued that it would be against the nature of mediation to compel the parties to mediate; mediation is a consensual and voluntary activity.

If the parties have agreed on mediation, however, it is a different matter. There is currently no Danish case law on whether a valid mediation agreement can be enforced. It is normally assumed that such an agreement cannot be enforced (eg, LØ Jørgensen and M Lavesen: Mediationret og rammer, 2nd edition, 2016, pages 48 and 49).

The same applies to an agreement on negotiation, in relation to which there are no applicable rules under Danish law.

Hence, it must be assumed that Danish courts will enforce a foreign judgment even though the parties have agreed to mediate or negotiate the matter before resolving to judicial proceedings.

Arbitration is governed by the Danish Arbitration Act (Consolidated Act 553, 24 June 2005), which to a large extent follows the United Nations Commission on International Trade Law Model Law 1985.

A case will be dismissed at a party’s request if the parties have validly agreed to arbitration (section 8 of the Arbitration Act). If the action is brought after the commencement of the arbitral proceedings, the court has jurisdiction to rule on the arbitral tribunal’s jurisdiction only in respect of whether the subject-matter of the dispute is capable of settlement by arbitration.

The courts can order an interim measure of protection or enforcement at the request of a party, even if the parties have agreed to arbitration (section 9 of the Arbitration Act).

Insofar as arbitration agreements are concerned, the Brussels Regulation states that member states can rule on the validity and scope of an arbitration agreement in accordance with their national law. The ruling is not subject to the rules on recognition and enforcement of the regulation. Furthermore, Recital 12 provides that the New York Convention takes precedence over the Brussels Regulation, and thus that member states are permitted to recognise and enforce an arbitral award even when it is inconsistent with another member state’s judgment.

As Denmark has ratified the New York Convention (the New York Arbitration Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 June 1958), this convention has priority over the Brussels Regulation. Article II(3) of the convention states that, at the request of one of the parties, a court in a contracting state, when seized of an action in a matter in respect of which the parties have made an agreement, must refer the parties to arbitration, unless the agreement is invalid.

Hence, at the request of a party, Danish courts may refuse to enforce a judgment that concerns a matter which was subject to a valid arbitration agreement.

Favourably treated jurisdictions

Are judgments from some foreign jurisdictions given greater deference than judgments from others? If so, why?

Danish courts will not give greater deference to judgments from some jurisdictions compared to others. If the judgment is recognised by the Danish courts (ie, if it is governed by the Brussels Regulation, the Hague Convention or the Lugano Convention) it will be enforced without regard to the foreign jurisdiction.

Alteration of awards

Will a court ever recognise only part of a judgment, or alter or limit the damage award?

There is nothing to prevent a party from only seeking enforcement of a part of the judgment.

The court will not alter or limit a damage award given in an enforceable judgment, as the court cannot review the judgment.

Law stated date

Correct on:

Give the date on which the above content was accurate.

2 July 2020.