DENMARK Law and Practice Contributed by: Anne Buhl Bjelke, Johannes Grove Nielsen, Camilla Hudson and Rasmus Schmidt, Bech-Bruun
If the arbitral proceedings are filed with the DIA, a challenge of arbitrators must be submitted to the sec - retariat of the DIA within 15 days after having become aware of the appointment and the circumstances on which the challenge is based under Article 21 (1) of the DIA Rules. The Chair’s Committee of the DIA decides on the challenge under Article 21 (3) of the DIA Rules. 4.5 Arbitrator Requirements Following Section 12 of the DAA, arbitrators must be impartial and independent. An individual approached to be appointed as an arbitrator, as well as acting arbitrators, must disclose any circumstances likely to give rise to justifiable doubts as to their impartiality or independence. This includes personal or economic relations with either party or previous appointments by either of the parties. Taking inspiration from Sections 60 and 61 of the AJA, which concern the disqualification of judges at the national courts, the approach is applied on a case-by- case basis. For international arbitration in particular, the Guidelines on Conflicts of Interest in International Arbitration from the IBA have had some importance in determining the requirements of impartiality and independence. For proceedings filed at the DIA, it follows from Article 20 of the DIA Rules that any individual appointed as an arbitrator must be available, impartial and independ - ent. Similarly to the DAA, the individual must disclose any matters that may give rise to legitimate doubts as to their accessibility, impartiality or independence. For proceedings carried out by the Arbitration Board, arbitrators must disclose any matters that may cast doubt over their impartiality or independence under Section 6 (3) of the Arbitration Board’s Rules on arbi - tration.
ties. It is also a prerequisite for the arbitral tribunal’s competence that the subject matter of the dispute is arbitrable. This principle of competence-competence follows from Section 16 (1) of the DAA or Article 25 (1) of the DIA Rules (see 3.4 Validity ). 5.2 Circumstances for Court Intervention If the action addressing issues of jurisdiction is filed with the national court before arbitration is com - menced, and the dispute is subject to an arbitration agreement, the courts can only assess whether the arbitration agreement is null and void, inoperative or incapable of being performed. This limitation for the courts follows from Section 8 (1) of the DAA. If the action is brought before a national court after the com - mencement of arbitral proceedings, the court is fur - ther limited to ruling on the jurisdiction of the arbitral tribunal only in respect of whether the subject matter of the dispute is capable of settlement by arbitration under Section 8 (1) of the DAA. The national courts can also become involved when the arbitral tribunal has ruled on its own jurisdiction in a decision separate from the final award. If it is pre - liminarily ruled by the arbitral tribunal that it has juris - diction, any party may, within 30 days after having received notice of that ruling, request that the nation - al courts review the decision of the arbitral tribunal upholding its own jurisdiction under Section 16 (3) of the DAA. Ultimately, the national courts can invalidate an arbi - tral award containing decisions on matters beyond the scope of the arbitration agreement, as this is one of the explicit grounds on which an award may be set aside under Section 37 (2)(i)(c) of the DAA. 5.3 Timing of Challenge Under Section 8 (2) of the DAA, if an action is brought at the court after the commencement of the arbitral proceedings, the court can rule on the jurisdiction of the arbitral tribunal only in respect of whether the sub - ject matter of the dispute is arbitrable. Under Section 16 (2) of the DAA, it is the principal rule that a submission regarding the arbitral tribunal not having jurisdiction must be submitted no later than the submission of the statement of defence. A submis -
5. Jurisdiction 5.1 Challenges to Jurisdiction
In the first instance, the arbitral tribunal will rule on its own competence. The arbitral tribunal will, in par - ticular, consider whether a binding arbitration agree - ment covering the dispute is in place between the par -
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