DENMARK Trends and Developments Contributed by: Anne Buhl Bjelke, Johannes Grove Nielsen, Camilla Hudson and Rasmus Schmidt, Bech-Bruun
Enforcement of an arbitral award under appeal/ review In two recent decisions, the Eastern High Court decided on the question of whether enforcement of an arbitral award should be stayed when separate proceedings have been commenced against the validity of the award. The decision in U 2023.334 – where the enforcement proceedings were stayed In this decision, the High Court ruled on the question of whether an arbitral award from the International Chamber of Commerce (ICC) in Paris was enforce - able in Denmark when the arbitral award was under appeal at the Cour d’appel de Paris in Paris. Company A, who had won against a Danish company in the ICC arbitration in Paris, commenced proceed - ings before the Danish Enforcement Court for enforce - ment of the arbitral award. However, the Danish com - pany had appealed the arbitral award to the Cour d’appel de Paris , contending that the arbitral award should be set aside. In the proceedings before the Danish Enforcement Court, the Danish company claimed that enforcement should be stayed pending the outcome of the appeal case before the Cour d’appel de Paris . Company A claimed that the enforcement proceedings should be continued – or alternatively that staying the enforce - ment proceedings be made contingent on the Dan - ish company providing appropriate security up to the amount that it was awarded in the arbitral award. Firstly, the High Court noted that the arbitral award rendered from the ICC established an obligation for payment and could serve as the basis for enforcement proceedings in Denmark: see Section 38 of the Danish Arbitration Act and Section 478 of the Danish Admin - istration of Justice Act. However, the High Court found that the matters raised by the Danish company before the Cour d’appel de Paris were fundamental issues that could potentially lead to the arbitral award being set aside. Based on an overall assessment, the High Court found that there were sufficient reasons to stay the enforce - ment of the arbitral award. In this regard, it was noted by the High Court that there was no basis for estab -
It follows from Section 37 of the Danish Arbitration Act that: “An arbitral award may be set aside only if: […] 2. the court finds that: a. the subject-matter of the dispute is not capable of settlement by arbitration, or b. the award is manifestly contrary to the public policy of this country”. In its decision, the High Court found that based on the provisions in the Danish Arbitration Act related to the arbitrability of disputes and the invalidity of arbitral awards (see Sections 6 and 37 of the Danish Arbi - tration Act), and based on the preparatory works of this legislation, there was no basis for assuming that disputes regarding agreements claimed by one of the parties to be contrary to statutory competition rules could not be settled by arbitration, as happened in this case. In short, the court considered that it was a legal relationship in which the parties had an unrestricted right of disposition, and the dispute could thus be considered arbitrable. Further, it was noted by the High Court that this was also in line with the decisions of the Court of Justice of the European Union (CJEU). The High Court thus concluded that there was no basis for setting aside the arbitral award pursuant to Section 37, subsections 2 (a) and 2 (b) of the Danish Arbitration Act. Overall, the decision is in line with the preparatory works for the Danish Arbitration Act, from which it fol - lows that the national courts cannot carry out a sub - stantive review of an arbitral award. It is also in line with previous case law of the Danish national courts, includ - ing the Danish Supreme Court, in relation to undertak - ing a restrictive practice to set aside arbitral awards. Moreover, whether questions should be posed to the CJEU for a preliminary ruling on the interpretation of EU competition law was also a part of the court case. The High Court did not find reason to raise any ques - tions before the CJEU.
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