DENMARK Trends and Developments Contributed by: Jakob Lentz, Johannes Grove Nielsen, Camilla Hudson and Rasmus Schmidt, Bech-Bruun
powers belonging exclusively to a bankruptcy estate or otherwise falling outside the debtor company’s power of disposal. Liability under Section 361 could be assessed independently of the bankruptcy. On that basis, the Supreme Court found that the arbi - tration clauses in the board member agreements gov - erned the bankruptcy estate’s damages claim. The Supreme Court added that it did not change the result that the estate’s claim might be connected to a trans - action capable of giving rise to an avoidance claim or that the claim was based on acts or omissions that occurred at a time when the company was or was becoming, insolvent. The Supreme Court therefore upheld the High Court’s judgment dismissing the pro - ceedings from the Danish courts pursuant to Section 8 of the Danish Arbitration Act. The decision is relevant because it confirms that Dan - ish courts may give broad effect to arbitration clauses in board member agreements, including where the company’s bankruptcy estate later pursues a dam - ages claim. The decision also clarifies that a manage - ment liability claim under Section 361 of the Danish Companies Act will not necessarily be treated as a bankruptcy or insolvency claim merely because the company is bankrupt, the alleged conduct occurred near insolvency or the claim has a factual connection to transactions that may also raise avoidance issues. The decisive point was that the estate was pursuing a claim to which it had succeeded from the company and that the assessment of liability under Section 361 could be carried out independently of the bankruptcy. The ruling therefore reinforces Denmark’s arbitration- friendly approach. It confirms that the ordinary courts will dismiss proceedings where a valid arbitration clause covers the dispute, even in a post-bankruptcy setting. Scope of Dispute Resolution Clauses Incorporated Through Standard Terms In March 2026, the Danish Eastern High Court con - sidered whether a dispute resolution clause contained in incorporated standard business terms applied to a bilateral dispute between two contracting parties, where the clause gave a third party the right to choose between Danish court proceedings and arbitration.
The case concerned proceedings brought by A against B ApS in relation to an agreement dated 28 May 2024 for the delivery of pigs. The agreement provided that, unless otherwise described, the applicable SPF-Dan - mark standard business terms for piglet transactions would apply, but it did not contain a separate juris - diction or arbitration clause. The parties agreed that SPF-Danmark’s standard business terms for piglet transactions formed part of their contract. The relevant SPF terms provided that if a dispute could not be resolved by negotiation, the dispute should, at SPF’s choice, be resolved either before the Danish courts atSPF’s contractual forum, the District Court in Esbjerg or finally by arbitration administered by the Danish Institute of Arbitration. The terms were framed by reference to trade agreements involving SPF and “the Parties” were defined as the seller, the buyer and SPF where those parties had entered into a trade agreement with each other. SPF-Danmark con - firmed by email on 28 March 2025 that no three-party agreement had been concluded between A, B ApS and SPF-Danmark. The District Court dismissed the case, finding that the parties had entered into a valid forum selection agreement and that the case could not be brought before the District Court on Bornholm. The Eastern High Court reached the opposite conclusion. The High Court held that the wording of the clause most naturally presupposed that SPF-Danmark was a party to the agreement to which the dispute related. The High Court further found that there was no basis in the evidence for assuming that A and B ApS, by mak - ing a general reference to SPF-Danmark’s business terms, had intended to give SPF-Danmark the power to determine the forum for disputes to which SPF- Danmark was not itself a party. On that basis, the High Court held that A was not pre - cluded from bringing proceedings before B ApS’ home court under Section 235 (1) of the Danish Administra - tion of Justice Act. The District Court’s judgment was therefore set aside and the case was remitted to the District Court on Bornholm for continued proceedings. The decision is a useful reminder that Danish courts will not necessarily give effect to an arbitration clause
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