DENMARK Law and Practice Contributed by: Johannes Grove Nielsen, Jakob Lentz, Anne Buhl Bjelke and Daniel Myhre Engell, Bech-Bruun Law Firm P/S
one of those Member States may, in the event of a dispute concerning investments in the other Member State, bring proceedings against the latter Member State before an arbitral tribunal whose jurisdiction that Member State has undertaken to accept. The above- mentioned agreement is therefore not in accordance with EU law and cannot be relied upon in this regard. ” Outcome/status of the case The tribunal issued an order taking note of discontinu- ance on 19 November 2021 under ICSID Arbitration Rule 44; there has been no decision on liability. 1.6 Reaction to Awards Made Against the State There has been no final award in any investor–state arbitration case against Denmark to date. As such, there is no public record of Denmark resisting enforce- ment or seeking annulment as a respondent. The two known treaty-based investor–state arbitration cases are pending or discontinued, and the contract-based Greenland case is pending. If an adverse award were rendered, Denmark’s obliga- tions and procedures for recognition/enforcement are clearly laid out in the ICSID Convention (Article 54), the DAA and the New York Convention. 2. Investment Treaties, Free Trade Agreements and Investment Laws 2.1 Bilateral and Multilateral Investment Treaties Denmark maintains a network of 39 BITs, primarily with extra-EU partners – ie, China, Sri Lanka, South Korea, Türkiye, Malaysia, Hong Kong (China), Ukraine, Vietnam, Ghana, Argentina, Peru, Chile, Albania, Mon- golia, Russia, Venezuela, Pakistan, Tunisia, North Korea, the Philippines, Zimbabwe, Laos, Egypt, Mex- ico, Kuwait, Mozambique, Algeria, Belarus, Ethiopia, Nicaragua, Uganda, Tanzania, Bosnia and Herzego- vina, Indonesia, Montenegro, Serbia, Bangladesh, Morocco and North Macedonia. Intra-EU BITs have been terminated following the European Court of Justice Achmea case (C-284/16)
and the 2020 agreement terminating intra-EU BITs within the EU. As mentioned in 1.1 National Position , Denmark is/ was party to several major multilateral instruments with investment provisions. Notably, Denmark with- drew from the ECT with effect from 4 September 2025, under Article 47. The ECT’s 20-year “sunset clause” continues to protect pre-withdrawal investments, shaping the post-ECT landscape for legacy energy investments. Practical Angle Post-ECT For EU-based investors, protection increasingly comes from EU law and national remedies, while extra-EU BITs remain the primary treaty vehicle. Struc- turing through jurisdictions with applicable extra-EU BIT coverage may therefore be considered for future investments. As an EU member state, Denmark participates in the EU’s network of 44 preferential trade agreements with 76 partners worldwide. Recent “in-force” additions include EU–New Zealand (2024) and the EU–Chile Interim Trade Agreement (2025); the EU also lists agreements being adopted/ratified (eg, EU–Mercosur, modernised EU–Mexico) and under negotiation (eg, India, Indonesia, the Philippines, Thailand, Australia, the UAE). The EU is likely to ratify additional treaties and trade agreements in the future. The Commission’s “Nego- tiations and agreements” dashboard shows multiple dossiers pending adoption/ratification (eg, Mercosur, Mexico) and active negotiations (India, Indonesia, the Philippines, Thailand, Australia, the UAE). Once con- cluded at EU level, Denmark is bound in accordance with EU competences and national ratification where required. 2.2 Model Bilateral Investment Treaty Most of Denmark’s “classic” BITs were negotiated from a Danish Model BIT (circa 2000). Since the Lis- bon Treaty (2009), however, new investment-protec- tion texts for Denmark are negotiated at EU level (eg, the Comprehensive Economic and Trade Agreement, or CETA; EU–Vietnam IPA), so current practice fol-
26 CHAMBERS.COM
Powered by FlippingBook