DENMARK Law and Practice Contributed by: Anne Buhl Bjelke, Johannes Grove Nielsen, Camilla Hudson and Rasmus Schmidt, Bech-Bruun
way they see fit. According to Section 19 (2) of the DAA, it is explicitly stated that the power vested in the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence. It follows from Section 18 of the DAA that it is the duty of the arbitrators to ensure equal treatment of the parties, as well as to ensure that each party is given a fair opportunity to present its case. In line with Sec - tion 12, arbitrators must also be impartial and inde - pendent. Both prospective and acting arbitrators are under a duty to remain impartial and independent of the parties and must disclose any circumstances likely to give rise to justifiable doubts as to their impartiality or independence. 7.4 Legal Representatives In arbitral proceedings, there are no statutory pro - visions outlining particular qualifications or other requirements for legal representatives for arbitration cases. A party can decide not to assume legal coun - sel at all (although this is not recommended in most cases). However, there are legal requirements for representa - tives acting on behalf of their clients before the regu - lar courts in Denmark. As a rule, a legal representa - tive must be a Danish Bar-qualified lawyer (or an EU lawyer admitted to practice in Denmark) in order to appear before the national courts. 8. Evidence 8.1 Collection and Submission of Evidence While to a large extent it is possible for the parties to customise the proceedings in the way they would like, arbitration in Denmark is often conducted in a uniform way. It is the principal rule that the parties themselves are responsible for collecting and submitting the evi - dence they consider relevant and necessary for the case. If relevant, the parties can also agree on the factual circumstances to be assumed by the arbitral tribunal in considering its award. In terms of collecting evidence, a party can request disclosure of documents from the other party. If the
disclosure order by the arbitral tribunal is not complied with, the tribunal can choose to apply adverse infer - ence to the disadvantage of the non-complying party. The courts cannot force disclosure upon a party to the case. However, it is possible to request assistance from the courts to force disclosure upon a third party. The use of written witness statements in arbitration cases has become widely prevalent, particularly in international arbitration cases, through the influence from the procedures used in international arbitration cases, including the IBA rules. This is, in particular, applicable for cases before the DIA. The parties also commonly submit separate reports from experts. The arbitral tribunal can also instigate a process involving a neutral expert not engaged directly by either of the parties, much like the process usually followed by the national courts when obtaining expert appraisal; see, for example, Article 35 of the DIA Rules. 8.2 Rules of Evidence Section 19 (2) of the DAA establishes the arbitral tri - bunal’s discretion when assessing and weighing the evidence presented to it. The arbitral tribunal can, therefore, inter alia, decide which documents or other pieces of evidence are to be included and which are to be excluded as irrelevant. However, this principle can be derogated from by agreement between the parties. 8.3 Powers of Compulsion Under Danish law, arbitrators are not vested with pow - ers of compulsion to order the production of docu - ments or require the attendance of witnesses. The provisions found in the AJA stating the duty to give evidence and the powers of compulsion if a wit - ness refuses to testify are not applicable for an arbitral tribunal. A false testimony given by a witness (or a party) under arbitration is also not punishable under Section 158 of the Criminal Code, but instead as law - suit fraud. If coercive powers are necessary to make a witness testify, or if it is found desirable that the testimony is subject to criminal liability, the arbitral tribunal can, under Section 27 of the DAA, request the national courts’ assistance in taking evidence. While it is the principal rule that everyone has the duty to give testimony before the national courts, this rule has
175 CHAMBERS.COM
Powered by FlippingBook