DENMARK Law and Practice Contributed by: Jakob Lentz, Johannes Grove Nielsen, Camilla Hudson and Rasmus Schmidt, Bech-Bruun
9. Confidentiality 9.1 Extent of Confidentiality
a neutral expert not directly engaged by either party, much like the process usually followed by national courts when obtaining an expert appraisal; see, for example, Article 35 of the DIA Rules. 8.2 Rules of Evidence Section 19 (2) of the DAA establishes the arbitral tri - bunal’s discretion when assessing and weighing the evidence presented to it. The arbitral tribunal can, therefore, inter alia, decide which documents or other pieces of evidence are to be included and which are to be excluded as irrelevant. However, this principle can be derogated from by agreement between the parties. 8.3 Powers of Compulsion Under Danish law, arbitrators are not vested with pow - ers of compulsion to order the production of docu - ments or require the attendance of witnesses. The provisions found in the AJA stating the duty to give evidence and the powers of compulsion if a wit - ness refuses to testify do not apply to an arbitral tri - bunal. False testimony given by a witness (or a party) under arbitration is also not punishable under Section 158 of the Criminal Code, but instead as lawsuit fraud. If coercive powers are necessary to make a witness testify or if it is found desirable that the testimony is subject to criminal liability, the arbitral tribunal can, under Section 27 of the DAA, request the national courts’ assistance in taking evidence. While it is the principal rule that everyone has a duty to testify before national courts, this rule has exceptions. For example, individuals closely related to a party do not have this duty. Additionally, the arbitral tribunal can order any party or third party to produce certain documents that are (or are believed to be) under its disposal. However, the arbitral tribunal does not have any coercive pow - ers in the event of non-compliance. In these cases, the arbitral tribunal can refer to the national courts and request assistance in securing the evidence. In line with the provisions of the AJA, national courts have coercive powers only if the unwilling subject is a third party.
The prevailing view is that there are no general rules in Danish law that confer confidentiality on arbitral proceedings or materials from arbitral proceedings. Following this view, the parties are not necessar - ily obliged to maintain confidentiality regarding the case. In practice, hearings are rarely held with free public access. The parties are also free to enter into an agreement according to which they undertake a duty of confidentiality. The extent of the confidentiality will then depend on the terms of the parties’ agreement, but such agreements are common. If the arbitral proceedings are filed with the DIA, under Article 28 (4) of the DIA Rules, the arbitral tribunal can (upon a party’s request) decide that the proceedings be kept confidential. The arbitral tribunal can also take measures to protect trade secrets and confidential information. Proceedings at the Arbitration Board are confidential except for the award, which the Arbitration Board can choose to publish in anonymous form if the parties do not object thereto under Section 43 of the Rules of the Arbitration Board. Section 31 of the DAA requires that the award be in writing and signed by the arbitrators (or the majority of the arbitrators). The award must include the date and place as well. In addition, the award must state the reasons on which it is based, unless the parties have agreed otherwise or have requested a consent award, for example, in cases where a settlement agreement has been reached. Article 39 of the DIA Rules outlines similar require - ments for the form and content of the award. The DAA contains no explicit time limits on the deliv - ery of the award. If the arbitration takes place at the DIA, it is a fundamental principle that the arbitral tri - bunal ensures it is conducted within a reasonable time 10. The Award 10.1 Legal Requirements
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