DENMARK Law and Practice Contributed by: Jakob Lentz, Johannes Grove Nielsen, Camilla Hudson and Rasmus Schmidt, Bech-Bruun
If the subject matter is arbitrable and the arbitration agreement otherwise conforms with Danish contract law, the national courts will enforce the agreement. 3.4 Validity According to the doctrine of separability set out in Section 16 (1) of the DAA, examination of the validity of an arbitration clause is to be done separately and detached from a review of the main agreement. The arbitral tribunal may therefore uphold the arbitration agreement’s validity even if it finds the main agree - ment in which the arbitration agreement is contained invalid. The DAA does not contain provisions that restrict the parties in selecting arbitrators. Unless the parties’ agreement (or any institutional rules) provides other - wise, the parties are free to select whoever they find suitable as an arbitrator. Although there are no direct restrictions for the parties when selecting arbitrators, the individual to be appointed as arbitrator must still fulfil the general requirements of impartiality and inde - pendence. The International Bar Association (IBA) Rules of Ethics for International Arbitrators, adopted in 1987, reflect internationally accepted guidelines developed by law - yers from all continents. These guidelines stipulate that international arbitrators should be: • impartial; • independent; 4. The Arbitral Tribunal 4.1 Limits on Selection The DIA Rules contain specific rules on the appoint - ment of arbitrators, including rules on impartiality, dis - closure obligations regarding previous appointments by the parties or their legal advisers and the country of domicile (in international arbitration cases). Article 18 (2) of the DIA Rules stipulates that the president of the tribunal or a sole arbitrator, must hold a law degree. All appointments of arbitrators are also subject to con - • competent; • diligent; and • discreet.
firmation by the Chair’s Committee of the DIA under Article 19 (1) of the DIA Rules. 4.2 Default Procedures The DAA contains default procedures governing the selection process if the arbitral tribunal cannot be established in accordance with the procedure set out in the parties’ agreement or if the parties have not agreed on this issue. Under Section 11 (2) of the DAA, if the arbitration agreement does not set out the procedure for constituting the arbitral tribunal, the tribunal will consist of three arbitrators. Each party will appoint one arbitrator within 30 days of the other party’s request. The two arbitrators appointed will engage the third arbitrator, who will act as president of the tribunal. If the arbitral proceedings are filed with the DIA, the dispute will be decided by a sole arbitrator if the par - ties have not agreed upon the number of arbitrators under Article 18 (1) of the DIA Rules. However, in spe - cial circumstances, a panel of three arbitrators may be convened. In the case of multi-party arbitrations, there is no default procedure that applies unless otherwise agreed. 4.3 Court Intervention The selection of arbitrators is subject to the parties’ agreement and the courts will not automatically inter - vene. However, the courts can become involved at the request of a party under Section 11 (3) of the DAA. If the arbitral tribunal cannot be successfully consti - tuted, a party may request that the courts appoint the arbitrator. Section 11 (3) of the DAA applies if the arbitral tribunal cannot be constituted in line with the procedure agreed by the parties or, in the absence of such agreement, in line with the default rules men - tioned in 4.2 Default Procedures . In appointing an arbitrator, the courts will have regard to any qualifications required of the arbitrator under the parties’ agreement. The courts must also ensure that the appointed arbitrator is impartial and inde - pendent of the parties. This provision establishing the constitutive competence of the national courts cannot
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