DENMARK Law and Practice Contributed by: Anne Buhl Bjelke, Johannes Grove Nielsen, Camilla Hudson and Rasmus Schmidt, Bech-Bruun
13.4 Consolidation Whether an arbitral tribunal can consolidate separate arbitral proceedings will depend on the arbitration agreement between the parties. Consolidation can only happen if the arbitration agreement covers all of the parties’ claims. Therefore, the defendant can only file a counterclaim to be consolidated under the same arbitral proceedings if it is covered by the same arbi - tration agreement. Provided the newly made claim is covered by the arbitration agreement, it follows from Section 23 (3) of the DAA that the claim can be made during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate having regard to the delay in making it. If it is agreed that the arbitration will take place at the DIA, consolidation is regulated by Article 15 of the DIA Rules. Upon the request of a party, the DIA’s Chair’s Committee can decide that separate cases should be consolidated. If the counterparty does not agree to the consolidation, the chair decides after consulting the parties and confirmed arbitrators in the other proceed - ings (if any). Under Article 15 (3) of the DIA Rules, the Chair’s Committee must consider all relevant circum - stances, including the mutual connection between the cases and/or the parties, and the progress already made in the pending case, in addition to taking the aforementioned hearings into account. The courts cannot decide to consolidate separate arbitral proceedings under Section 4 of the DAA.
13.5 Binding of Third Parties The principal rule of privity of contracts applies in Den - mark, meaning that a third party is not bound by an arbitration agreement or an award issued under this agreement when this third party has not signed the agreement or otherwise accepted being bound by it. However, in the case of succession (both universal and singular) where the agreement into which the third party is succeeded contains an arbitration clause, this clause will generally be binding upon the third party. If relevant in a case filed with the national courts, the national courts will interpret the arbitration agreement in order to, inter alia, determine its scope. If the nation - al courts find that a foreign third party is subject to or bound by the arbitration agreement to the same extent as elaborated in 5. Jurisdiction , the court will bind the third party to the arbitration agreement. Under Article 16 of the DIA Rules, a party in an arbi - tration pending under the Rules may request that a third party join as an additional party in the arbitration and, likewise, a third party may request to join as an additional party in an arbitration pending under the Rules. If the third party and/or a party objects to the request to join the additional party, the arbitral tribunal will decide on the objection, after consultation with the third party and the parties under Article 16 (3) of the DIA Rules. Similarly, the DIA Rules also allow for consolidation of arbitration cases pending before the Institute under Article 15 of the DIA Rules.
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