DENMARK Law and Practice Contributed by: Anne Buhl Bjelke, Johannes Grove Nielsen, Camilla Hudson and Rasmus Schmidt, Bech-Bruun
be impartial, independent, competent, diligent and discreet. The DIA Rules contain specific rules on the appoint - ment of arbitrators, including rules on impartiality, dis - closure obligations for previous appointments by the parties or their legal advisers and country of domicile (in international arbitration cases). Article 18 (2) of the DIA Rules stipulates that the president of the tribu - nal, or a sole arbitrator, must hold a law degree. All appointments of arbitrators are also subject to con - firmation by the Chair’s Committee of the DIA under Article 19 (1) of the DIA Rules. 4.2 Default Procedures The DAA contains default procedures that regulate the selection process if the arbitral tribunal cannot be established in line with the procedure set out in the parties’ agreement, or if the parties have not agreed on this issue. Under Section 11 (2) of the DAA, if the arbitration agreement does not set out the procedure of constituting the arbitral tribunal, the tribunal will consist of three arbitrators. Each party will appoint one arbitrator within 30 days of a request to do so from the other party. The two arbitrators appointed will engage the third arbitrator, who will act as president of the tribunal. If the arbitral proceedings are filed with the DIA, the dispute will be decided by a sole arbitrator if the par - ties have not agreed upon the number of arbitrators under Article 18 (1) of the DIA Rules. However, in spe - cial circumstances, a panel of three arbitrators can be decided upon. In respect of the selection of arbitrators in the case of multi-party arbitrations, there is no default procedure that applies, unless otherwise agreed. 4.3 Court Intervention The selection of arbitrators is subject to the agreement of the parties, and the courts will not automatically intervene. However, the courts can become involved at the request of a party under Section 11 (3) of the DAA. If the arbitral tribunal cannot be successfully consti - tuted, a party may request that the courts appoint
the arbitrator. Section 11 (3) of the DAA applies if the arbitral tribunal cannot be constituted in line with the procedure agreed by the parties or, in the absence of such agreement, in line with the default rules men - tioned in 4.2 Default Procedures . In appointing an arbitrator, the courts will have regard to any qualifications required of the arbitrator by the agreement of the parties. The courts must also ensure that the arbitrator to be appointed is impartial and independent of the parties. This provision establish - ing the constitutive competence of the national courts cannot be derogated from by agreement between the parties under Section 2 (2) of the DAA. 4.4 Challenge and Removal of Arbitrators Under Section 13 (1) of the DAA, the procedure for challenging an arbitrator is to be decided freely by the parties. The DIA Rules contain provisions establish - ing that a challenge of a selected arbitrator is to be decided by the DIA. If the parties’ agreement does not regulate the proce - dure for challenging an arbitrator, Section 13 (2) of the DAA applies by default. According to this provision, a party that intends to challenge an arbitrator must send a written statement of the reasons for the challenge to the arbitral tribunal within 15 days of becoming aware of the constitution of the arbitral tribunal and of the circumstances on which the challenge is based. The grounds for a challenge can be that the arbitrator is not impartial or independent, or does not possess the qualifications or characteristics specified in the parties’ agreement. The arbitral tribunal will decide on the challenge, unless the arbitrator voluntarily resigns from the position or the other party agrees with the challenge. If the arbitral tribunal rules that the chal - lenge is unfounded, the challenging party may, within 30 days, request that the national courts decide on the challenge under Section 13 (3) of the DAA. Filing a challenge against an arbitrator will extend the overall timeframe of the proceedings in most cases, as challenges often suspend the proceedings until the challenge has been settled.
170 CHAMBERS.COM
Powered by FlippingBook