DENMARK Law and Practice Contributed by: Johannes Grove Nielsen, Jakob Lentz, Anne Buhl Bjelke and Daniel Myhre Engell, Bech-Bruun Law Firm P/S
In a three-member tribunal, each party must appoint one arbitrator within 30 days of a request from the other party, and the two co-arbitrators must appoint the presiding arbitrator within 30 days of their appoint- ment. If a party fails to appoint, or if the co-arbitrators fail to agree, the Danish courts will appoint the missing arbitrator(s), taking into account any agreed qualifica- tions and ensuring independence and impartiality. If not otherwise agreed, the default number of arbitra- tors is three. The Act contains no special multi-party appointment rule; the same default provisions and the court appointment backstop apply. 4.3 Court Intervention Courts may intervene only as provided by the DAA, which explicitly states that the court may not intervene in the arbitration process on a general level. The court may intervene in some specific instances, such as: • to appoint arbitrator(s) where constitution fails (Section11 (3)) – such appointment is not appeal- able (Section 5 (4)); • to decide challenges if a party-agreed or default challenge fails before the tribunal (Section 13 (3)); and • terminate a mandate where an arbitrator is unable to act or unduly delays (Section 14 (1)). As a general rule of thumb, most court orders – also in relation to those delivered in accordance with the DAA – are appealable as per the Danish Administra- tion of Justice Act (except an order under Section 11 (3), as mentioned above). 4.4 Challenge and Removal of Arbitrators There are particular provisions governing the chal- lenge or removal of arbitrators if there are justifiable doubts as to their impartiality/independence, or if there is a lack of agreed qualifications (Section 12 (2) of the Danish Arbitration Act). The arbitrators’ duty to disclose circumstances that may give rise to justified doubts as to the impartiality or independence of the person concerned is continuous (Section 12 (1)).
The procedures for such challenges or removal of arbitrators vary. The parties may agree a challenge process; in the absence of an agreement, a party must challenge within 15 days of becoming aware of the tribunal’s constitution and the relevant facts. If the tribunal rejects the challenge, the party may request a court decision within 30 days. The tribunal may proceed while the court application is pending. Termination for inability/undue delay may be ordered by the court. The appointment of a replacement arbi- trator follows the original appointment rules. Under the Danish Institute of Arbitration (DIA) Rules 2021, challenges must be filed within 15 calendar days and are decided by the Chair’s Committee in accordance with Article 21. Any replacement appoint- ments are handled in accordance with the procedure stipulated in Article 22. 4.5 Arbitrator Requirements Under Danish law, arbitrator independence and impar- tiality are treated as mandatory safeguards. The DAA provides that anyone approached to serve as arbitra- tor must be impartial and independent, and is under a continuing duty to disclose any circumstances that could give rise to justifiable doubts about their inde- pendence or impartiality. These requirements are mandatory, meaning the parties cannot contract out of them. An arbitrator may be challenged if such doubts exist or if the arbitrator does not meet agreed qualifica- tions, and the Act sets out a structured procedure for challenges, including time limits and the possibility of court review if the tribunal rejects a challenge. The same principles are reinforced under the DIA Rules of Arbitration 2021, which are the most fre- quently used institutional rules in Denmark. Article 20 requires that any arbitrator must be available, impartial and independent. Before confirmation, an arbitrator must sign a Declaration of Acceptance, Impartiality and Independence, and provide written disclosure of any circumstances that are likely to raise justifiable doubts; the obligation to disclose continues through- out the proceedings.
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