DENMARK Law and Practice Contributed by: Jakob Lentz, Johannes Grove Nielsen, Camilla Hudson and Rasmus Schmidt, Bech-Bruun
5.4 Standard of Judicial Review for Jurisdiction/Admissibility
action is brought before a national court after the com - mencement of arbitral proceedings, the court is fur - ther limited to ruling on the jurisdiction of the arbitral tribunal only as to whether the subject matter of the dispute is capable of settlement by arbitration under Section 8 (1) of the DAA. The national courts can also become involved when the arbitral tribunal has ruled on its own jurisdiction in a decision separate from the final award. If the arbitral tribunal preliminarily rules that it has jurisdiction, any party may, within 30 days after having received notice of that ruling, request that the national courts review the decision of the arbitral tribunal upholding its own jurisdiction under Section 16 (3) of the DAA. Ultimately, the national courts can invalidate an arbi - tral award containing decisions on matters beyond the scope of the arbitration agreement, as this is one of the explicit grounds on which an award may be set aside under Section 37 (2)(i)(c) of the DAA. 5.3 Timing of Challenge Under Section 8 (2) of the DAA, if an action is brought at the court after the commencement of the arbitral proceedings, the court can rule on the jurisdiction of the arbitral tribunal only in respect of whether the sub - ject matter of the dispute is arbitrable. Under Section 16 (2) of the DAA, it is the principal rule that a submission regarding the arbitral tribunal not having jurisdiction must be submitted no later than the submission of the statement of defence. A submis - sion that the arbitral tribunal is exceeding the scope of its authority will be submitted as soon as possible after the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. Similarly, it also follows from Article 25 (2) of the DIA Rules that objections to the jurisdiction of the tribunal must be raised no later than the statement of defence. A submission concerning the arbitral tribunal not hav - ing jurisdiction cannot be invoked in the enforcement process of the arbitral award unless the subject matter of arbitration was non-arbitrable in the first place, as set out in Section 6 of the DAA under Section 16 (4) of the DAA.
As mentioned in 3.3 National Courts’ Approach , the DAA includes limitations as to the national courts’ availability to review disputes subject to a (valid) arbi - tration agreement under Section 8 (1) of the DAA. The standard of judicial review for jurisdiction to be employed is not specified in the statutory provisions of Danish law. There is no conclusive case law on the standard to be applied. Therefore, a case-by-case assessment has to be carried out to take the specific circumstances of the case into account. The Danish courts have traditionally been reluctant to set aside decisions from an arbitral tribunal. A national court will most likely be reluctant to set aside a deci - sion from the tribunal ruling on its own jurisdiction. 5.5 Breach of Arbitration Agreement As mentioned in 3.3 National Courts’ Approach , national courts must dismiss the case if a dispute cov - ered by an arbitration agreement is filed with them and impose costs on the losing party. Naturally, this does not apply if an arbitration agreement is found to be:
• null and void; • inoperable; or • incapable of being performed.
As the parties can agree to enter into an arbitration agreement, they can also agree to waive the agree - ment and proceed in national courts or through other means of dispute resolution. If a dispute is filed with the national courts, the national court will generally not raise the question of breach when the parties do not object to the court’s jurisdiction, regardless of whether the dispute is subject to an arbitration agreement. 5.6 Jurisdiction Over Third Parties The arbitral tribunal is generally not competent to assume jurisdiction over third parties that have not signed or entered into the arbitration agreement. How - ever, third parties may sometimes be deemed to be parties bound by the arbitration agreement, such as in cases of universal succession (see 13.5 Binding of Third Parties ).
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