DENMARK Law and Practice Contributed by: Johannes Grove Nielsen, Jakob Lentz, Anne Buhl Bjelke and Daniel Myhre Engell, Bech-Bruun Law Firm P/S
2.4 Interpretive Aids Denmark does not publish a general, official “com- mentary” on investment treaties. Instead, interpretive guidance is provided through treaty-specific instru- ments such as Exchanges of Notes and Protocols attached to individual treaties and, in the case of more recent EU agreements covering Denmark, through the EU’s Joint Interpretative Instruments. A number of Denmark’s extra-EU BITs include Exchanges of Notes or Protocols that are expressly “an integral part” of the treaty and serve as interpretive context under Article 31 (2) of the Vienna Convention of Law of Treaties (VCLT). For instance, the Denmark– Lithuania BIT (1992) was concluded “with exchange of notes”, and the Denmark–Vietnam BIT of 1994 con- tains a Protocol providing for possible extension to the Faroe Islands and Greenland by Exchange of Notes. These texts are publicly available via UNCTAD/UNTS repositories. As an EU member state, Denmark is bound by Joint Interpretative Instruments published in the Official Journal (which qualify as interpretive context under Article 31 of the VCLT). The CETA Joint Interpretative Instrument (2017) explicitly states that it provides a clear, agreed interpretation of debated provisions, “in the sense of Article 31 of the Vienna Convention”. For access and publication, Denmark’s treaty texts and attached notes/protocols are publicly available via the UN Treaty Series and major official repositories; the Danish Ministry of Foreign Affairs also sets out national practice on treaty making and documenta- tion. 2.5 Investment Laws Denmark has no single, standalone “national invest- ment law” that grants general substantive protections and ISDS to national or foreign investors. Instead, investor protection stems from the Danish Constitu- tion and incorporated human rights laws on an EU level, while screening/controls are governed by the Investment Screening Act. Disputes with public authorities are often resolved at the ordinary Danish courts via litigation, as an alterna- tive to investor–state arbitration under domestic law.
Danish law provides a constitutional guaranteed right for judicial review of administrative decisions through the Danish courts. Extra-EU investment protection and ISDS, if any, derive from treaties, not from Danish statutes. 2.6 Arbitration Clauses in Investor–State Contracts In Denmark, direct arbitration clauses between inves- tors and the state or state-owned/controlled entities are primarily used in sector-specific contexts. They are common in public construction and infrastructure contracts through the AB 18 standard terms, which refer disputes to the Danish Building and Construction Arbitration Board. Outside those sectors, Danish law allows the state and state-owned entities to agree to arbitration, but there are no published statistics indicating how wide- spread this practice is across the market. Compared with investment treaties, these clauses provide pro- tection only at the contractual level and do not offer the broader substantive and procedural guarantees found in treaty-based investor–state dispute settle- ment. In Denmark, contract-based arbitration gives access to arbitration depending on the scope of the arbitral clause in question, with enforcement subject to the New York Convention. Treaty-based ISDS, by con- trast, provides investors with substantive internation- al protections and stronger enforcement, especially under the ICSID Convention. Within the EU, however, treaty-based ISDS is no long- er available (post- Achmea/Komstroy – see 2.3 Free Trade Agreements ), leaving only contract arbitration and domestic courts as remedies unless the invest- ment is covered by an extra-EU treaty.
3. Substantive Protections and Breaches 3.1 Common Complaints
Denmark’s pattern mirrors global ISDS practice when it comes to the complaints most frequently cited by
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