DENMARK Law and Practice Contributed by: Anne Buhl Bjelke, Johannes Grove Nielsen, Camilla Hudson and Rasmus Schmidt, Bech-Bruun
subject matters that the parties have an unrestricted right to dispose of. For some matters, specific statu - tory provisions establish that these cannot be sub - ject to arbitral agreements – eg, disputes regarding a residential lease cannot be subject to an arbitration agreement. Also, as a general rule, fields of law traditionally con - cerned with public policy, such as family law and criminal law, the grant of patents and other IP rights, and the grant of citizenship, are jurisdiction-exclusive to the national courts. Thus, disputes pertaining to matters of law protecting interests of public policy are generally non-arbitrable. In these cases, the public interest outweighs the contractual autonomy of the parties. It is possible for public authorities to enter into arbitration agreements when the authority does not act in its capacity as public authority but, for example, enters into contracts regarding the construction of a building. A list of non-arbitrable subject matters is not set out in the DAA. The question of arbitrability is determined on a case-by-case basis by the arbitral tribunal. Disputes pertaining to public law are not, per se, non-arbitrable. The approach to be applied therefore largely depends on the specific circumstances of the case and the Considerations that in many other countries have led to the requirement that arbitration agreements must be in written form have traditionally been handled in Danish law by the courts imposing relatively strict requirements for the adoption of an arbitration agree - ment. The courts have traditionally adopted a restric - tive approach when determining the disputes covered by an arbitration agreement. However, there is some debate as to whether this traditional approach is still being practised by the national courts. Regardless, the courts’ assessment and interpretation of an arbi - tration agreement will largely depend on the specific circumstances of the case (namely the wording and context of the agreement). interests of that particular legal area. 3.3 National Courts’ Approach When a valid arbitration agreement is in force, the national courts are confined to specific issues explic - itly mentioned in the DAA: see Section 4 of the
DAA. These issues include assisting in appointing arbitrator(s) (Section 11 (3)), securing and obtaining evidence (Section 27), setting aside the award (Sec - tion 37), and refusing recognition or enforcement of the award (Section 39). Under Section 8 (1) of the DAA, the courts’ jurisdiction is limited if a matter is submitted before the Danish national courts but subject to a valid arbitration agree - ment (see 5.2 Circumstances for Court Intervention ). The case must, at a party’s request, be dismissed by the court, unless the arbitration agreement is invalid or the arbitration cannot be completed for other reasons. If the subject matter is arbitrable and the arbitration agreement otherwise conforms with Danish contract law, the national courts will enforce the agreement. 3.4 Validity According to the doctrine of separability set out in Section 16 (1) of the DAA, examination of the validity of an arbitration clause is to be done separately and detached from a review of the main agreement. The arbitral tribunal may therefore uphold the arbitration agreement’s validity even if it finds the main agree - ment in which the arbitration agreement is contained invalid. The DAA does not contain provisions restricting the parties when selecting the arbitrators. Unless the par - ties’ agreement (or any institutional rules) provides otherwise, the parties are free to select whoever they find suitable as an arbitrator. Although there are no direct restrictions for the parties when selecting arbi - trators, the individual to be appointed as arbitrator must still fulfil the general requirements of impartiality and independence. The International Bar Association (IBA) Rules of Ethics for International Arbitrators, from 1987, reflect interna - tionally acceptable guidelines that have been devel - oped by lawyers from all continents. These guide - lines stipulates that international arbitrators should 4. The Arbitral Tribunal 4.1 Limits on Selection
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