DENMARK Law and Practice Contributed by: Anne Buhl Bjelke, Johannes Grove Nielsen, Camilla Hudson and Rasmus Schmidt, Bech-Bruun
Finally, since 2022, an increase has been seen in cases being referred to arbitration under NOMA, an association established in 2017 facilitating interna - tional arbitrations in the Nordic countries within the maritime and offshore industry. 1.4 National Courts No specific courts are designated to hear disputes relating to international or domestic arbitrations. In the Danish civil court system, matters pertaining to inter - national arbitrations and/or domestic arbitrations of commercial disputes would proceed before the ordi - nary national courts. The central statute governing arbitral proceedings is the DAA. The DAA applies when the arbitration is seat - ed in Denmark, and it does not differentiate between national arbitration (ie, arbitration without international affiliation) and international arbitration (ie, arbitration with international affiliation): see Section 1 (1) of the DAA. Some of the provisions of the DAA also apply when the place of arbitration is a foreign country, or when the place of arbitration has not yet been deter - mined: see Section 1 (2) of the DAA. The DAA reflects, to a large extent, the 1985 version of the UNCITRAL Model Law. 2. Governing Legislation 2.1 Governing Law One deviation of the DAA from the Model Law is the scope of application. The DAA also applies in cases of national arbitration and cases of non-commercial arbitration. The DAA contains a number of provisions referring to the national courts. Proceedings at the national courts are regulated by the Administration of Justice Act of 1916 (the AJA). The proceedings will therefore also be subject to this Act if the national courts are engaged. If institutional arbitration is chosen, the arbitral pro - ceedings will be subject to the rules in force at that particular institution. An example of this is the DIA Rules, which regulate the proceedings that take place at the DIA. If the proceedings are filed with the DIA, the arbitration is governed by the DIA Rules and, where
the rules are silent on a specific point, by any other rules of the parties – or, failing that, by rules decided by the tribunal (see Article 28 (2) of the DIA Rules). 2.2 Changes to National Law No recent changes have been made to the DAA. The last major change in regulatory arbitration rules was in 2021 when the DIA Rules were changed. The new DIA Rules entered into force on 13 April 2021 and replaced the 2013 DIA Rules. The new Rules were formulated in line with the standards of Danish and international arbitration practice. Neither the DAA nor Danish contract law in general stipulate that the arbitration agreement must meet certain formal requirements. There are, therefore, no formal legal requirements for an arbitration agreement to be enforceable. An oral agreement may also suf - fice, although such an agreement may be difficult to prove and thereby uphold. An arbitration agreement based on the parties’ unequivocal behaviour, such as failure to object throughout the proceedings, can also be considered binding for the parties. 3. The Arbitration Agreement 3.1 Enforceability However, under Section 7 of the DAA, arbitration agreements regarding disputes that have not yet arisen must relate to a specific, concretised legal relationship. An arbitration clause in a consumer contract is not binding on the consumer when the agreement is con - cluded prior to the dispute. Thus, arbitration clauses in a consumer contract are not, per se, invalid. How - ever, an arbitration agreement concluded before the dispute arose is not binding on the consumer under Section 7 (2) of the DAA. A consumer has only waived the right to plead that the arbitration agreement is non-binding if they proceed with the arbitration after being informed that the arbitration agreement is non- binding. 3.2 Arbitrability Under Section 6 of the DAA, it is a principal rule that arbitration can be agreed for disputes relating to
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