DENMARK Law and Practice Contributed by: Jakob Lentz, Johannes Grove Nielsen, Camilla Hudson and Rasmus Schmidt, Bech-Bruun
6.2 Role of Courts Under Section 9 of the DAA, an arbitration agree - ment does not prejudice a party from petitioning the national courts for preliminary or interim measures, in line with the provisions found in the AJA. The courts may order an injunction if the following circumstances are shown to be sufficiently probable or proven by clear and convincing evidence: • that the party holds the right for which protection by way of an injunction is sought; • that the conduct of the opposing party requires the granting of the injunction; and • that the ability of the party to enforce its right will be lost if the party has to await a full trial. The courts can also deny the granting of an injunction if the damage or inconvenience caused to the coun - terparty is manifestly disproportionate to the interests supporting the injunction. Section 9 applies not only when the seat of arbitration is in Denmark, but also when the place of arbitration is in a foreign country or when the place of arbitration has not yet been determined, under Section 1 (2) of the DAA. Where the parties cannot agree that Section 9 is not applicable, see Section 2 (1) of the DAA. Types of Relief Subject to the provisions in the AJA, the types of reliefs that the national courts can grant include injunctions and actions preserving assets and evidence – for instance, in the case of infringement of IP rights. Danish statutory law does not contain provisions spe - cifically relating to the use of emergency arbitrators. However, as no statutory provisions preclude the use of emergency arbitrators, the parties may, in their arbi - tration agreement, explicitly allow their use. Article 48 of the DIA Rules allows the appointment of an emergency arbitrator when the taking of evidence or the imposition of interim measures cannot await the confirmation of the “permanent” arbitrator(s). These procedures are further regulated in Appendix 3 of the DIA Rules.
It has been debated whether this principal rule – ie, that only signatories of the agreement are bound by it – is modified by a Danish Supreme Court decision issued in 2014. In this case (U 2014.2042 H), the court ruled that the claim between two parties with no direct contractual relationship (and therefore no arbitration agreement between them) was to be resolved through arbitration, as each party’s agreement contained an arbitration clause permitting this interpretation. The agreements at each link contained references to the same agreed document and, therefore, to the same arbitration clause. In relation to disputes governed by the Arbitration Board, Section 69 (7) of AB 18 provides that when AB 18 (or its predecessor, AB 92) applies to the rela - tionship between the employer and several parties (contractors, suppliers), the arbitration agreement will apply to the interrelationship between the parties. If a party requests it, the arbitral tribunal can order any party to take such interim measures of protection as the arbitral tribunal deems necessary in respect of the circumstances of the dispute under Section 17 of the DAA. However, if a party does not comply with the order from the arbitral tribunal, there is no legal basis providing for the enforceability of the interim meas - ures of protection ordered by the tribunal. To ensure enforceability, the party must engage the national courts (see 6.2 Role of Courts ). In the majority of arbitration cases in Denmark, the types of interim relief the tribunal considers are typi - cally injunctions and actions preserving assets and evidence, corresponding to those employed by the national courts (ie, the types found in the AJA). 6. Preliminary and Interim Relief 6.1 Types of Relief In arbitral proceedings with the DIA, the tribunal may, upon a party’s request order another party to take such interim measures as it considers necessary under Article 36 of the DIA Rules.
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