An introduction to arbitration in Denmark – and some
trendsby Attorney René Offersen, Lett Law Firm
International arbitration plays an increasing role in Denmark. The reason for this is connected with
the general extended impact of international arbitration. However, the reason may also be that, as a
relatively small country (of 6m inhabitants) having no natural raw materials, Denmark has always
been dependent on extensive trading with the outside world. The dependence on the outside world
has been reflected in many ways. For instance, in 1973 Denmark was the first, and at that time the
only, Nordic country to become a member of what we know as the EU today. Our considerable
trading with ia the UK made this necessary.
This article gives an introduction to arbitration in Denmark. Firstly, the Danish Arbitration Act will
be introduced followed by a review of the most important rules of the Danish Institute of
Arbitration. The following paragraph describes the rules on evidence in arbitration proceedings
adopted by the Danish Arbitration Association in 2010, which may be expected to have a major
impact on arbitration practice. Comments on expectations of the increasing use of arbitration as a
tool for solving corporate-sector disputes conclude the article.
The Danish Arbitration Act
Arbitration subject to Danish jurisdiction is regulated by the Danish Arbitration Act. This means
that national as well as international arbitration taking place in Denmark (and in a few instances
abroad) is regulated by the Act.1 The first Arbitration Act was passed in 19722 and has been
amended several times since then, most recently in 2008. The Act is partly mandatory, which
implies that, in some instances, it cannot be derogated from or amended by agreement between the
parties.3
1
Furthermore, Denmark acceded to the New-York Convention of 1958 by which the ratifying states will acknowledge
and execute international arbitration awards. This means that international arbitration awards are, to a much larger
extent, acknowledged and executed.
2
Act No. 181 of 24 May 1972.
3
This is the case in Chapter 1 (general provisions), Chapter 2 (Arbitration Agreement), Chapter 8 (setting aside the
arbitration award) and Chapter 9 (acknowledgement and execution of the arbitration award).
1
The Arbitration Act4 provides a key principle in Danish arbitration. The Act precludes any court
hearing of disputes in matters where it has been agreed that these must be settled by arbitration.
This implies that, the parties may exclude ordinary courts in their jurisdiction by jointly laying
down a binding agreement to resolve a dispute defined in detail by arbitration. This legal position
was not created by the first Arbitration Act in 1972. The right to have a dispute resolved by
arbitration has been recognised for centuries and is, thereby, older than the official court system.
The restricted jurisdiction of the courts, including that a dispute cannot be brought before or set
aside by traditional courts, goes back to Book 1-6-1 of the Danish Law of King Christian V from
1683.
Up until the Arbitration Act from 1972, Book 1-6-1 of the Danish Law constituted the sole
arbitration legal basis in Denmark. The main purpose of the Arbitration Act from 1972 was to
implement some simple rules to enhance arbitration functions, including rules on court assistance to
arbitration tribunals and rules by which Danish arbitration awards could be executed according to
the rulesapplying to judgments.5
The purpose of the Act was to set up few and simple rules reflected in the drawing up of the Act.
Therefore, the Act was rather brief and contained only thirteen sections, and other principles were
derived from unwritten general principles of law. This limited regulation turned out not to be
completely tenable for any long period of time.6
In 2005, a considerable reform of the Arbitration Act was implemented. The Arbitration Act was
most recently revised in 2008. The purpose of the 2005 Act7 was to make arbitration rules clearer.
Few changes were introduced in terms of legal position8 by the Act, but, in general, it was a
consolidation of the law already in force. The Act is based on the UNCITRAL Model Law, but,
unlike the Model Law the Act also applies to national arbitration. As regards requirements for an
arbitration agreement the Act complies with recommendation 2 of the UNCITRAL Model Law
4
Section 4.
Pihlblad, Steffen, and others: Praktisk voldgiftsret med fokus på Voldgiftsinstituttet (Practical arbitration law focusing
on the Danish Institute of Arbitration), DJØF Publishing (2001), page 20.
6
Ørgaard, Anders: Voldgiftsaftalen (Arbitration Agreement), DJØF Publishing (2006), page 23.
7
Danish Act No 553 of 24 June 2005 on arbitration.
8
Section 7(2) of the 2005 Act sets out that no arbitration agreements may be concluded beforehand in consumer
relations, and section 17 sets out that an arbitration tribunal may take interim measures.
5
2
from 2006. This harmonisation has resulted in increased transparency for Danish as well as
international users of the Arbitration Act.
The 2005 Act carried on the general principle of the parties' autonomy. This does not, however,
continue to be an absolute principle, in that the Act contains restrictions as regards the possibilities
for settling disputes by arbitration. The Act9 provides that the Act does not apply to labour disputes
or certain other disputes within special fields of law. In addition, the Act10 provides that arbitration
proceedings are limited to disputes of which the parties have unrestricted right of disposition.11 The
Act does not set out the nature of such disputes, nor does it provide for any definition thereof. The
most significant decision is a judgment of 17 February 1999,12 in which the Danish Supreme Court
held that the claim could not be submitted to arbitration, because the arbitration tribunal would have
to decide on public regulation, which was essentially deemed to safeguard public interests. The
judgment has been the subject of considerable attention in legal literature.
Arbitration law contains four key principles to be considered (a) the requirements for the drafting
and contents of an arbitration agreement, (b) the access of the arbitration tribunal and of the parties
to isolated taking of evidence before national courts, (c) arbitrators' legal capacity and (d) the
finiteness of the arbitration award. There are good reasons for elaborating comments on these
fundamental principles:
(a) The arbitration agreement
Requirements for arbitration agreements have been given attention in national as well as
international arbitration literature. Under the New York Convention and UNCITRAL Model Law
1985, an arbitration agreement must be "in writing", meaning "signed or in an exchange of letters".
The Danish Arbitration Act does not have any similar requirement, and therefore Danish arbitration
practice accepts a much broader variety of arbitration agreements.
9
Section 1(5).
Section 6.
11
Cases on paternity, parental authority, legal separation, divorce and cancellation fall within fields where the
Government holds monopoly and so do criminal cases. The arbitration agreement is void if, according to its kind, the
dispute cannot be settled by arbitration, cf section 37(2)(a), see Juul, Jakob and others: (in Danish) Voldgiftsret
(Arbitration law), 2nd edition (2008), page 52.
12
UfR (Danish weekly law reports) 1999, page 829. See also UfR 2002.870 and UfR 2002.2336.
10
3
(b) Taking of evidence before national courts
The Arbitration Act13 provides the arbitration tribunal or a party, where the tribunal agrees thereto,
with the possibility to request national courts to take evidence under the rules of the Danish
Administration of Justice Act.
In 2012, the Supreme Court made a decision concerning general public importance.14 It concerned
the taking of evidence under the Administration of Justice Act15 in arbitration cases.
It may be inferred from the supreme-court decision that the taking of evidence is not considered to
be comprised by the term ”all disputes” in arbitration clauses. Consequently, an arbitration
agreement relating to disputes does not refer all procedural steps to an arbitration tribunal, but the
parties may agree explicitly that certain procedural steps must be exempt from the jurisdiction of
the courts.
The arbitration tribunal may request a national court to present preliminary questions to the EU
Court of Justice if these are of decisive importance to the arbitration proceedings.
(c) Arbitrators' legal capacity
The Arbitration Act16 corresponds to the Model Law17 on the legal capacity of the arbitrator. Thus,
any challenge can be made against an arbitrator only if there are matters that give rise to legitimate
doubt about such arbitrator's impartiality or independence. The compliance with this procedure is
ensured by a general duty of disclosure in connection with the appointment of an arbitrator. The
duty of disclosure aims at elucidating matters that raise legitimate doubt as to the arbitrator's
impartiality or independence. If the parties have agreed to appoint one or more arbitrators, the same
legal-capacity standard will presumably apply as is the case for the non-party appointed arbitrators,
including the presiding arbitrators.18
13
Section 27.
UfR 2012.1124.
15
Section 343.
16
Section 12.
17
Article 12.
18
Juul, Jakob, and Fauerholdt, Peter: Voldgiftsret (Arbitration law) 2nd edition (2008), Forlaget Thomson, page 178
14
4
Thus, it is a fact that neither an arbitrator nor those close to such arbitrator may have any
opportunity to make use of or be at risk of suffering a loss due to the outcome of the arbitration
proceedings. And there must be no conflict of interest between the arbitrator and one of the parties.
The requirement of impartiality precludes any present or recently ended business relationships
between the arbitrator and those close to such arbitrator on the one side and a party and such party's
attorney on the other side.
According to the supreme-court ruling of 11 November 2004, which is referred to in UfR 2005.611,
the arbitrator was not disqualified , despite the fact that the arbitrator had been appointed by the
party in question in four cases from 1992 until 2003, and the arbitrator was, furthermore, appointed
in a pending case for the party whom he had represented in an assignment prior to 1996. The
Supreme Court took account of the fact that the arbitrator in question had been appointed by a party
and, as an arbitrator, had held a considerable number of offices.19
The parties may agree on a procedure as to the handling of challenges against an arbitrator.20 If the
parties do not make use of this possibility, a reasoned challenge in writing must be submitted to the
arbitration tribunal within 15 days after the parties became aware of the appointment of the
arbitrator and the matters on which the challenge is based.
In its judgment of 16 December 2009,21 the Supreme Court refrained from setting aside a decision
by an arbitration tribunal, even though a disqualified arbitrator was involved; the reason was that
the deadline had been missed – the arbitration tribunal had even made its award.
Unless the arbitrator chooses to withdraw from the tribunal or the other party agrees that the
arbitrator's position must end, the arbitration tribunal will decide on the question of the arbitrator's
legal capacity.22 Where a party's challenge against an arbitrator is not accepted, this party may
submit the question to the national courts for separate hearing within 30 days after having received
notice of the decision rejecting the challenge.23 A challenge against an arbitrator cannot be relied
19
See also UfR 2010.802.
Section 13 of the Arbitration Act.
21
UfR 2010.802.
22
This is based on a general arbitration law principle of competence-competence.
23
Courts' hearing of an objection does not preclude an arbitration tribunal from continuing the arbitration
proceedings or from making an award.
20
5
upon as a vitiating factor or as a reason for refusing recognition or enforcement of the arbitration
award. Thus, a party is precluded from doing so if the court has already refused the challenge
against the arbitrator and in cases where the party in question has not made any arrangement for a
section-13 review.
(d) Finiteness of the arbitration award
Another key issue is the finiteness of the arbitration award. Under the statutory rules of the
Arbitration Act,24 the arbitration tribunal terminate the proceedings by its final arbitration award.25
The mandate of the arbitration tribunal basically expires at the time of the arbitration award.
Meanwhile, the arbitration tribunal may, by request from either of the parties26 or by its own
initiative correct errors due to calculation, writing and printing, etc., cf. section 33. A party may
also, within 30 days, request the arbitration tribunal to make an additional award as to claims that
have been submitted during the proceedings but which have not been included in the award.
The finiteness of an arbitration award implies that, based on a dominant principal rule, the
arbitration award cannot be brought before or appealed against to the courts.
However, there are exceptions27 to the effect that courts may set aside an arbitration award as void
if the party requesting the award to be set aside proves:
(1) that one of the parties to the arbitration agreement did not have legal capacity under the laws of
the country where such party resided when the agreement was concluded or that the arbitration
agreement is void under the law agreed by the parties to be the legal basis thereof or, if such law has
not been agreed, under Danish law, or (2) that the party requesting the award to be set aside did not
receive due notice of the appointment of an arbitrator or of the arbitration proceedings or, due to
other reasons, was unable to argue its case, or (3) that the arbitration award deals with a dispute not
comprised by the arbitration agreement or decides on questions outside the scope of the arbitration
agreement, or (4) that the composition of the arbitration tribunal or the arbitration proceedings had
24
Section 32.
The Arbitration Tribunal may also be terminated if a claimant withdraws from its claim, the parties agree to
terminate the arbitration proceedings or the arbitration tribunal concludes that, due to other reasons, continuing the
arbitration proceedings has become unnecessary or impossible.
25 25
26
27
A request must be submitted within 30 days.
Section 37.
6
not been in compliance with the agreement by the parties or the Arbitration Act. In addition, an
arbitration award may be sett aside if the court finds that (5) according to its kind, the dispute could
not be settled by arbitration or (6) the arbitration award is inconsistent with the Danish rule of law.
This limited possibility forsetting aside an arbitration award corresponds to the UNCITRAL's
Model Law.28
Specifics on the Danish Institute of Arbitration
In Denmark, there are two prominent arbitration institutes: The Danish Institute of Arbitration
(DIA) and the Danish Building and Construction Arbitration Board (DBCAB). The DIA is of a
general nature, whereas the DBCAB is specialised strictly within the field of building and
construction.29 In 2011, the DIA celebrated its 30th anniversary and is, thereby, a relatively young
institution.30 Today, however, the DIA is the dominant player outside the field of building and
construction, and the former widespread use of ad-hoc arbitration tribunals involving the president
of the Maritime and Commercial Court (Commercial Court) is, in relative terms, considered to be
declining.
Not surprisingly, the DIA has attained its present position through its wide support from relevant
players31 in the business sector as well as in legal circles, and the Institute offers highly qualified
arbitrators, including supreme-court judges,32 professors and leading attorneys. The object of the
DIA is promoting arbitration in accordance with the Rules of Arbitration Procedure laid down by its
Council through arbitration tribunals appointed by the Institute for each individual case.
28
Article 34.
The DIA also sets up arbitration tribunals within the building and construction field. In international construction
contracts, the DIA should be considered because, according to that set of rules, each party nominates one arbitrator
and the person appointed chairman of the arbitration tribunal comes from a third country. The DBCAB appoints all
arbitrators without any prior nomination of candidates by the parties and, as a result, the arbitrators are usually
Danes. The DBCAB has been agreed if the standard conditions within the construction industry (AB92/ABR 89) are
adopted.
30
Formal arbitration is, however, firmly rooted in Denmark and the existence of a permanent arbitration institute thus
dates back to 1894.
31
The DIA has the support of ia the Danish Bar and Law Society, Association of Danish Judges, Confederation of Danish
Industries and Danish Shipowners’ Association.
32
It is the practice of judges to accept appointment as an arbitrator only if appointed chairman of the arbitration
tribunal or sole arbitrator and judges do not accept any appointment as an arbitrator appointed by one of the parties.
29
7
In order to bring the rules into line with general international standards, the Statutes of the DIA
were amended in 2004 and again in 2006 due to the 2005 amendment of the Arbitration Act. Last
year (2011) the DIA initiated a process to amend the rules of the Institute. The aim of this process is
to upgrade the efficiency of the arbitration procedure and to bring it up to date in accordance with
the newest and highest international standards.
New provisions are expected to be included in the amendments of the set of rules to the effect that
(1) arbitration cases may be initiated by a statement of claim instead of a request followed by a
statement of claim, which is the case in the present system, (2) it will be possible to hear two or
more arbitration cases together, (3) irrespective of whether the claims arise out of different
agreements, it will be possible to include more than one claim in an arbitration case, and (4) it opens
up for the possibility to bring new parties into an arbitration case.
In addition, the amendments will include (5) amendments of the provisions concerning the
appointment procedure and the composition of the arbitration tribunal, (6) rules allowing the
arbitration tribunal to impose a duty of confidentiality on the parties even if no agreement has been
concluded in that respect, and (7) rules on the taking of evidence and interim remedies.
Members of Council are appointed by the supporting organisations. The administration of the DIA
is carried out by a secretariat, and this secretariat also handles the cases until the arbitration
tribunals have been appointed.
Rules of arbitration
The following will focus on some of the rules laid down by the DIA in Rules of Arbitration
Procedure of Danish Arbitration (2008).
All arbitrators are appointed by the DIA,33 however, the parties must be given the opportunity to
voice an opinion as to the composition of the arbitration tribunal prior to its appointment. As far as
possible, the DIA accommodates wishes of the parties in its appointment of arbitrators, but the DIA
is not obliged to follow the parties’ wishes.
33
See Article 14.
8
Before being appointed, an arbitrator is to submit a statement of independence and impartiality to
the DIA.34 A party may challenge any candidate for appointment as an arbitrator only if that party
finds that there are circumstances giving rise to justifiable doubts as to the impartiality or
independence of such arbitrator or if the party finds that the arbitrator does not possess the
qualifications that the parties have agreed. The chairmanship of the Institute is to decide on any
challenge.
According to the Managing Director of the DIA,35 the DIA aims at processing any challenge relating
to the independence and impartiality of arbitrators as is international practice and, in particular, as
would be the decision had the challenge been brought before a court of law.
In cases where not all the parties to the dispute are domiciled in the same country, the DIA will, as
chairman of the arbitration tribunal or sole arbitrator, appoint an arbitrator who is domiciled in a
country that is not any of the countries of the parties, unless the parties have agreed otherwise.36
Arbitration tribunals consist of three arbitrators unless the parties have agreed to have only one
arbitrator.37 The arbitration tribunals consist of persons who have supreme legal and technical
expertise and who are generally recognised within their field of work. The chairman must hold a
law degree.
Each party is to pay a deposit in cash. Based on the institute rates38 appearing at any time from the
website of the DIA, it is possible to make an advance calculation of the maximum security.
As a general rule,39 a preparatory meeting must be held (if convenient, as a conference call or by
video conference). No definite rules have been laid down as to the application of terms of reference,
and it is unusual for an arbitration tribunal to decide to do so; however, it may be agreed. If the rules
provide no solution to any certain procedural issue, the arbitration tribunal will decide for itself. The
34
An arbitrator is, for the purpose of the assessment of independence and impartiality, required to provide more
information than the information appearing from the IBA Guidelines on Conflict of Interest in International
Arbitration. The DIA applies a 5-year criterion.
35
Pihlblad, Steffen: Erhvervsjuridisk Tidsskrift (2012), No 3. The article contains a detailed account of the practice by
the Institute as regards independence and impartiality. The information provided is not otherwise publicly available.
36
See Article 20.
37
See Article 15.
38
Maximum costs have been fixed for arbitration tribunals set up by the DIA. The rates depend on the financial value
of the dispute. The fee payable to the arbitration tribunal is to be approved by the DIA.
39
See Article 30.
9
DIA has emphasised the fact that the Administration of Justice Act does not apply and must not be
applied for gap-filling, certainly not in international arbitration proceedings, where general
principles of international arbitration are expected to be applied.
Each party may examine any witnesses such party would like.40 Exceptional, and in commercial
disputes very clear, circumstances would be required in order for an arbitration tribunal to bar the
examination of any witness as unnecessary in respect of the decision of the case. Before the
ordinary courts of law, written witness statements are the exception. This is (as yet) also the case in
arbitration cases between Danish businesses; however, this may change as a result of the new Rules
on the Taking of Evidence, see below. The rules of the DIA include no express provision in this
respect, but it is not unusual in international arbitration proceedings to decide to apply written
witness statements. Notwithstanding the possibility of having experts appointed, each party may
call in its own expert witnesses.
The draft award must be scrutinized by the DIA before it is communicated to the parties. Among
other subjects, the DIA ensures that the requirements under the New York Convention are complied
with.
Taking of evidence in arbitration proceedings
Production of evidence
At the end of 2010, the Danish Arbitration Association laid down Rules on the Taking of Evidence
in arbitration (the Rules). Even though these rules are clearly inspired by international arbitration
practice, most of them form a mark of the practice that had been developed in international
arbitration. Therefore, expectations are that these rules will be considered as changing arbitration
practice in national proceedings. The Rules only apply where it has been agreed, but, at the
forthcoming revision of the procedural rules, the DIA is expected to make a decision to apply the
rules as non-mandatory, and it is obvious that ad-hoc arbitration tribunals will seek inspiration in
40
See Article 34.
10
the Rules when making decisions in procedural disputes, which is also anticipated in Article 1.1 of
the Rules. As to arbitration practice, the Rules will be of great importance to arbitration practice.
In particular, there is good reason to add comments to the provisions on (a) duty of disclosure, (b)
witness statements in writing and (c) the use of expert witnesses.
(a) Disclosure
Pursuant to the 1970 Hague Convention, Denmark has opted out of contributing to tracing
documents prior to the instigation of legal proceedings, what is known as ”pre-trial discovery of
documents” in common-law countries.
The DIA procedural rules in force do not provide explicit rules on disclosure (apart from Section 35
of the DIA procedural rules on expert witnesses) and, thereby, leave the issue to make a decision on
the basis of general procedural considerations to the arbitration tribunal. By the rules on taking of
evidence, a more detailed regulation of the issue – and it is also more detailed than the regulation
under the Danish Administration of Justice Act, which is already known by the courts.
Thus, Article 2.2 of the Rules provides that, upon application by one party, the arbitration tribunal
may order the other party to produce documents that are subject to such party's control. Under
Article 2.3(b) discoveries of documents must include a description of the facts that are to be proven
and a statement of the requested documents' claims, relevance and possible impact of the allegation
of the proceedings. This is a larger requirement to the discoveries of documents than what is
required by the courts prior to the hearing on points of law, and this reduces the risk that, materially,
the duty of disclosure gets too comprehensive.
Where the other party objects to the discovery of documents, the arbitration tribunal must,
according to Article 2.6 of the Rules and after having given the parties the possibility to make
statements, as fast as possible make a decision on the discovery, including taking "any and all
circumstances" into consideration. It is certain, that, by the wording "any and all circumstances" an
assessment has been left to the arbitration tribunal to include weighty commercial considerations
and thereby more than narrow legal considerations. This becomes clear when attention is paid to
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Article 2.7 of the Rules, which provides the arbitration tribunal with title to appoint an expert being
vested with duty of confidentiality to assess the justification of the objections.
The Rules do not provide what to apply if, following the disclosure order, a party does not comply
with the disclosure order. This will, in all likelihood and most often, be accomplished by adverse
inference.
(b) Written witness statements
The general procedure in Denmark used to be that parties and witnesses appeared and gave
evidence before the court without prior submission of a written witness statement. This applied to
both courts and arbitration tribunals that were not international. This has been amended by the rules
of the taking of evidence.
By Article 3.2 of the Rules, the parties have a general right to submit written witness statements in
connection with the case preparation, and Article 3.3 provides that the arbitration tribunal may
actually recommend that a party produces written witness statements. Article 3.4 sets out the further
requirements to the contents of a written witness statement. Article 3.5 provides that a witness must
give oral evidence before the arbitration tribunal unless otherwise agreed by the parties 41. The rules
on witness statements apply similarly to the parties, cf. Article 3.7 of the Rules.
Introduction of written witness statements as a general rule in arbitration is appropriate, since the
internationalisation unanvoidably will cause that Danish business undertakings will see themselves
become involved in processes in court cultures where written witness statements are applied.
Furthermore, the procedure has definitely material advantages in complex legal proceedings.
(c) Provisions in the Rules on expert witnesses
41
Under Article 3.6 of the Rules, the arbitration tribunal must set aside a written witness statement if, without a good
reason, the witness omits to appear and make a statement unless there are " exceptional circumstances". So, in this
case circumstances must be more than exceptional.
12
Article 4 of the Rules allows a party to produce reports prepared by an expert appointed by that
party, as evidence concerning specific issues. The report may be obtained before as well as after the
institution of the arbitral proceedings.
Expert reports must according to Article 4.2 of the Rules: (1) include the expert's full name, present
and previous relations, if any, to the member of the arbitration tribunal, the parties, their advisors
and a brief description of such expert's background, qualifications, education and experience, (2)
account of the facts on which assessments and conclusions are based, (3) describe methods applied,
evidence and other data, (4) confirm that, in the eyes of the expert, the expert report is correct, true
and fair, and (5) include the expert's signature stating the place and time.
Under Article 4.4 of the Rules, the expert is to make an oral statement according to the rules
applying to witnesses. If a party-appointed expert fails, without any good reason, to appear before
the arbitral tribunal to give testimony, the arbitration tribunal is, upon request by the other party, to
disregard the report. Moreover, Article 4.3 provides that the arbitration tribunal may decide on
conference with the participation of experts during the oral proceedings.
Expert witnesses may also be appointed by the arbitration tribunal, which usually means greater
security for impartiality and an increased value of the report in terms of evidence.
The provision of the Rules on experts is well consistent with the practise that was applied prior to
the adoption of the Rules.
Increased use of arbitration
Apart from the general tendency for increased use of arbitration, there are good reasons to believe
that the Danish business sector will increasingly let disputes be resolved by arbitration instead of by
litigation. The reason is that, following the fundamental 2006 reform of the judicial system, the
business sector has given businesses stronger reasons to consider arbitration as a dispute-resolution
method rather than litigation.
13
The reform of the judicial system supported the redefinition of the role of the Supreme Court from
an appeal court to a court that decides mainly cases of general public importance and, following the
reform, largely all cases are to be tried firstly by the district courts with appeal lying to the High
Courts.
This means that, irrespective of their value, all legal proceedings must, as a definite general rule, be
commenced before a district court. The district court may upon request refer cases of general public
importance to the High Court.
By the reform, the Commercial Court was given jurisdiction, as a court of first instance, to try cases
within some objectively defined fields, including (1) some international cases in the sense that one
of the parties is domiciled outside Denmark and (2) cases of general public importance relating to
commercial issues referred to it by a district court. Cases before the Commercial Court are decided
by a panel of judges consisting of one professionally appointed judge and two expert lay assessors
selected from a list compiled by the business sector.
Prior to the reform of the judicial system, it was always possible to commence legal proceedings
before the High Courts or the Commercial Court in commercial disputes involving a subject-matter
of no less than DKK 1m (EUR 135,000). As for disputes arising out of a contractual relationship,
that is now possible only in cases within the objectively defined fields of jurisdiction of the
Commercial Court and in cases involving issues of general public importance, which will be rare in
cases concerning interpretation of a contract, including breach of contract and damages in
contractual relationships.
Arbitration will become only more important in Denmark in the years to come.
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