DENMARK Law and Practice Contributed by: Anne Buhl Bjelke, Johannes Grove Nielsen, Camilla Hudson and Rasmus Schmidt, Bech-Bruun
In the majority of the arbitration cases taking place in Denmark, the types of interim relief that the tribunal considers are typically injunctions and actions pre - serving assets and evidence corresponding to those employed by the national courts (ie, the types found in the AJA). In arbitral proceedings with the DIA, the tribunal can, upon a request from a party, order another party to take such interim measures as the tribunal considers necessary under Article 36 of the DIA Rules. 6.2 Role of Courts Under Section 9 of the DAA, an arbitration agree - ment does not prejudice a party from petitioning the national courts for preliminary or interim measures, in line with the provisions found in the AJA. The courts may order an injunction if the following circumstances are shown to be sufficiently probable or proven by clear and convincing evidence: • that the party holds the right for which protection by way of an injunction is sought; • that the conduct of the opposing party requires the granting of the injunction; and • that the ability of the party to enforce its right will be lost if the party has to await a full trial. The courts can also deny the granting of an injunction if the damage or inconvenience caused to the coun - terparty is manifestly disproportionate to the interests supporting the injunction. Section 9 not only applies when the seat of arbitration is in Denmark but also if the place of arbitration is in a foreign country or if it has not yet been determined where the arbitration is taking place, under Section 1 (2) of the DAA. Where the parties cannot agree that Section 9 is not applicable, see Section 2 (1) of the DAA. Types of Relief Subject to the provisions in the AJA, the types of reliefs that the national courts can grant include injunctions and actions preserving assets and evidence – for instance, in the case of infringement of IP rights.
Danish statutory law does not contain provisions spe - cifically relating to the use of emergency arbitrators. However, as no statutory provisions preclude the use of emergency arbitrators, the parties can, in their arbi - tration agreement, decide to explicitly allow the use of emergency arbitrators. Article 48 of the DIA Rules allows for the appointment of an emergency arbitrator where the taking of evi - dence or interim measures cannot await the confir - mation of the “permanent” arbitrator(s). These proce - dures are further regulated in Appendix 3 of the DIA Rules. 6.3 Security for Costs Under Section 36 (1) of the DAA, an arbitral tribunal can order the parties to provide security for the fees and expenses of the tribunal. In most cases, the secu - rity will be ordered by the tribunal or the institution at which the arbitration is being conducted. The arbi - tral tribunal has the power to determine the nature and extent of the security. Unless agreed otherwise, the arbitral tribunal cannot order security for a party’s costs to the other party. If the parties have agreed to use the DIA Rules, for example, the arbitral tribunal can order a party upon request to provide security for the other party’s costs under Article 12 (3) of the DIA Rules. Specifically in relation to instances where the arbitral tribunal requires a party to take interim measures (see 6.1 Types of Relief ), it further follows from Section 17 of the DAA that the arbitral tribunal can require any party to provide appropriate security in connection with the measures. The arbitral tribunal can decide that the security is a condition for employing the inter - im measure requested. In proceedings at the national courts filed by a plaintiff not domiciled in the EU/European Economic Area, the courts may order a party to provide security for costs. However, security cannot be ordered by the courts when the plaintiff is domiciled in a country where the security will not be ordered for plaintiffs from Den - mark. Specifically in procedures of interim measures before the national courts, the court may provide interim relief
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