DENMARK Law and Practice Contributed by: Jakob Lentz, Johannes Grove Nielsen, Camilla Hudson and Rasmus Schmidt, Bech-Bruun
be derogated from by agreement between the parties under Section 2 (2) of the DAA. 4.4 Challenge and Removal of Arbitrators Under Section 13 (1) of the DAA, the procedure for challenging an arbitrator is to be decided freely by the parties. The DIA Rules contain provisions establish - ing that a challenge of a selected arbitrator is to be decided by the DIA. If the parties’ agreement does not regulate the proce - dure for challenging an arbitrator, Section 13 (2) of the DAA applies by default. According to this provision, a party that intends to challenge an arbitrator must send a written statement of the reasons for the challenge to the arbitral tribunal within 15 days of becoming aware of the constitution of the arbitral tribunal and of the circumstances on which the challenge is based. The grounds for a challenge can be that the arbitrator is not impartial or independent or does not possess the qualifications or characteristics specified in the parties’ agreement. The arbitral tribunal will decide on the challenge, unless the arbitrator voluntarily resigns from the position or the other party agrees with the challenge. If the arbitral tribunal rules that the chal - lenge is unfounded, the challenging party may, within 30 days, request that the national courts decide on the challenge under Section 13 (3) of the DAA. Filing a challenge against an arbitrator will extend the overall timeframe of the proceedings in most cases, as such challenges often suspend the proceedings until the challenge is settled. If the arbitral proceedings are filed with the DIA, a challenge to the arbitrators must be submitted to the secretariat of the DIA within 15 days of becoming aware of the appointment and the circumstances on which the challenge is based under Article 21 (1) of the DIA Rules. The Chair’s Committee of the DIA decides on the challenge under Article 21 (3) of the DIA Rules. 4.5 Arbitrator Requirements Following Section 12 of the DAA, arbitrators must be impartial and independent. An individual approached to be appointed as an arbitrator, as well as acting arbitrators, must disclose any circumstances likely to
give rise to justifiable doubts as to their impartiality or independence. This includes personal or economic relations with either party or previous appointments by either of the parties. Taking inspiration from Sections 60 and 61 of the AJA, which concern the disqualification of judges at the national courts, the approach is applied on a case-by- case basis. For international arbitration in particular, the IBA Guidelines on Conflicts of Interest have been important in determining the requirements of impar - tiality and independence. For proceedings filed at the DIA, Article 20 of the DIA Rules provides that any individual appointed as an arbitrator must be available, impartial and independ - ent. Similar to the DAA, the individual must disclose any matters that may give rise to legitimate doubts about their accessibility, impartiality or independence. For proceedings carried out by the Arbitration Board, arbitrators must disclose any matters that may cast doubt over their impartiality or independence under Section 6 (3) of the Arbitration Board’s Rules on arbi - tration. In the first instance, the arbitral tribunal will rule on its own competence. The arbitral tribunal will, in par - ticular, consider whether a binding arbitration agree - ment covering the dispute is in place between the par - ties. It is also a prerequisite for the arbitral tribunal’s competence that the subject matter of the dispute is arbitrable. This principle of competence-competence follows from Section 16 (1) of the DAA or Article 25 (1) of the DIA Rules (see 3.4 Validity ). 5.2 Circumstances for Court Intervention 5. Jurisdiction 5.1 Challenges to Jurisdiction If the action addressing issues of jurisdiction is filed with the national court before arbitration is com - menced and the dispute is subject to an arbitration agreement, the courts can only assess whether the arbitration agreement is null and void, inoperative or incapable of being performed. This limitation for the courts follows from Section 8 (1) of the DAA. If the
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