DENMARK Trends and Developments Contributed by: Jakob Lentz, Johannes Grove Nielsen, Camilla Hudson and Rasmus Schmidt, Bech-Bruun
merely because it appears in standard terms incor - porated by reference. Where the clause is drafted for a contractual structure involving a third party and where that third party is not a party to the relevant dispute, the courts may require clear evidence that the contracting parties intended the clause to apply to their bilateral dispute. For parties choosing arbitra - tion, the decision underlines the importance of draft - ing dispute resolution clauses directly into the relevant agreement or ensuring that any incorporated standard terms clearly apply to the actual parties and dispute in question. Consumer Protection and Pre-Dispute Arbitration Agreements In May 2026, the Danish Western High Court consid - ered the effect of an arbitration clause incorporated by reference to AB 92 in a consumer-related dispute concerning alleged defective remedial works; see the decision in BS-50411/2025-VLR. The case concerned a house where defects had previously been identified in the brickwork. In 2019, the previous owner entered into a settlement agree - ment with the contractor, C and the brick supplier, B, concerning the rebuilding of the brickwork. The set - tlement agreement provided that, unless otherwise expressly stated, AB 92 would form part of the con - tract governing the remedial works. Some years later, a subsequent buyer of the house, A, alleged defects in both the bricks and the mortar joints and requested that court-appointed expert inspection proceedings be initiated under Section 343 of the Danish Adminis - tration of Justice Act. B argued that the application should be dismissed because the disputes were subject to arbitration under AB 92. The District Court upheld B’s objection and dismissed the application; however, the High Court reversed that decision. The High Court referred to Section 7 (2) of the Dan - ish Arbitration Act, under which, in cases concerning consumer contracts, an arbitration agreement entered into prior to the dispute arising is not binding on the consumer. The High Court found that the purpose of the 2019 settlement agreement was to resolve a then-pending dispute concerning the condition of the
brickwork. The High Court further found that the cur - rent dispute concerning the condition of the brick - work had arisen after the settlement agreement had been concluded and after a complete rebuilding of the brickwork had been carried out. On that basis, the arbitration clause was not binding and the case was remitted to the District Court. The decision illustrates an important statutory limita - tion on the effect of arbitration clauses in Denmark. Even where arbitration rules are incorporated by ref - erence to standard construction terms such as AB 92, a pre-dispute arbitration agreement will not bind a consumer where the relevant dispute arises after the agreement containing the arbitration clause was concluded and concerns alleged defects in remedial works subsequently carried out. The decision is there - fore relevant not only for construction disputes, but also more generally for commercial parties relying on standard terms in transactions or settlements involv - ing consumers. Partial Setting Aside of an Arbitral Award Due to Breach of Due Process and Public Policy In January 2026, the District Court of Horsens deliv - ered a notable judgment partially setting aside an arbi - tral award rendered by a tribunal appointed by the Danish Building and Construction Arbitration Board; see case BS-20094/2024-HRS. The case concerned the part of the award ordering Rambøll Danmark A/S to pay procedural interest to Nordstern ApS for the period from 8 June 2017 to 17 September 2018. Nordstern claimed DKK 7,693,935 (including VAT) in the arbitration proceedings, together with procedural interest from 8 June 2017. Rambøll disputed the inter - est claim as undocumented in both its rejoinder and its final written submission. The arbitral tribunal never - theless stated in the award that the interest claim was undisputed and awarded interest as claimed. Rambøll subsequently requested correction of the award, pointing out that the interest claim had in fact been disputed. The tribunal declined to correct the award but stated in its protocol that it had noted the claim was not undisputed and nevertheless consid - ered the interest claim justified by the circumstances
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