DENMARK Law and Practice Contributed by: Johannes Grove Nielsen, Jakob Lentz, Anne Buhl Bjelke and Daniel Myhre Engell, Bech-Bruun Law Firm P/S
The DIA Chair’s Committee has the power to confirm or refuse the confirmation of arbitrators, thereby act- ing as an additional safeguard. Challenges must be made in writing within 15 calen- dar days of learning of the relevant circumstances, and the Chair’s Committee decides on such chal- lenges. The Rules also extend disclosure obligations to the parties, requiring them to identify any third-party funder with an economic interest in the outcome of the proceedings. In short, Danish arbitration law and the DIA Rules both impose stringent requirements of independence, impartiality and disclosure, combining statutory safe- guards with institutional oversight to ensure the integ- rity of arbitral tribunals. The DAA permits a tribunal, on a party’s request, to order “such interim measure of protection as the arbi- tral tribunal may consider necessary …” and to require “appropriate security” in connection with such meas- ures (Section 17). These directions are contractually binding between the parties, but the Act contains no mechanism for court recognition/enforcement of tribunal-ordered interim measures. In practice, parties must seek enforceable relief from the ordinary courts instead (please see 5.2 Role of Domestic Courts ). Scope/Examples Although it is accepted under Danish law that tribunals may order status quo or action/refrain orders, asset preservation and evidence preservation directions, there is debate in the relevant legal literature about interpreting domestic injunction/attachment concepts into Section 17; either way, tribunal measures are not directly enforceable by Danish courts. DIA Rules Under the DIA Rules, a constituted tribunal may grant interim measures (Article 36) and may require secu- 5. Preliminary and Interim Relief 5.1 Types of Relief Arbitral Tribunals Seated in Denmark
rity. Before constitution, the Rules provide an interim arbitrator (Appendix 3) and an emergency arbitrator (Appendix 4). Emergency/interim decisions are bind- ing inter partes and must be complied with “without delay”, but they are not court-enforceable awards
under Sections 38–29 of the DAA. Investor–State (ICSID) Arbitrations
ICSID tribunals may “recommend” provisional meas- ures to preserve parties’ rights (Article 47 of the ICSID Convention; Rule 47 of the 2022 ICSID Arbitration Rules). While Article 47 uses the term “recommend” ICSID practice treats compliance as mandatory in order to protect the exclusivity of ICSID proceedings under Article 26. Security for costs is now governed by a standalone provision (ICSID Arbitration Rule 53, 2022). For perspective on the topic of provisional measures, Klesch Group Holdings Limited and Raffinerie Heide GmbH v Federal Republic of Germany (ICSID case no ARB/23/49 – see 1.5 Major Arbitrations ) has show- cased, among many other things, that ICSID arbitra- tion can be used by investors to challenge national provisional measures. In this case, the tribunal ordered Germany, by way of provisional measures, to refrain from collecting the solidarity contribution in order to preserve the status quo and protect ICSID exclusiv- ity. By contrast, in Klesch Group Holdings Ltd, Klesch Refining Denmark A/S and Kalundborg Refinery A/S v Kingdom of Denmark (ICSID case no ARB/23/48), Denmark has, pursuant to its own laws, already put the collection of the solidarity contribution on hold, which may reduce the immediate need for provisional measures. Such provisional measures are binding inter partes but they are not enforceable (see above and 5.2 Role of Domestic Courts ). An amendment of the DAA is expected to be imple- mented within the coming years, and an expert com- mittee has recommended that Denmark implements the UNCITRAL Model Law Amendments from 2006 on interim measures.
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