DENMARK Law and Practice Contributed by: Johannes Grove Nielsen, Jakob Lentz, Anne Buhl Bjelke and Daniel Myhre Engell, Bech-Bruun Law Firm P/S
Typical Treaty-Based Cooling-Off Periods Used With Denmark Under the ECT, parties should first seek an amica- ble settlement. A three-month consultation period must elapse before arbitration may be commenced. After that period, the investor elects a forum (domes- tic courts/administration; a pre-agreed procedure; or international arbitration under ICSID/UNCITRAL/ SCC). The election of a forum after the cooling-off period is a material procedural step. Many Danish BITs provide for written notice plus three to six months of consultations before arbitration – eg, the Denmark–Mexico BIT requires amicable settle- ment efforts for six months from written notification before submission to arbitration. ICSID Convention and Exhaustion of Local Remedies Where the forum is ICSID, the Convention itself does not require the exhaustion of local remedies unless the state conditions its consent on that requirement. Consent to ICSID arbitration is deemed exclusive of other remedies, unless otherwise stated. Tribunals consistently read Article 26 as waiving any default exhaustion rule absent an express condition in the instrument of consent. 7.2 Confidentiality and Transparency Lex Arbitri and Institutional Rules at a Danish Seat The DAA does not contain a general duty of confi- dentiality; confidentiality must be achieved by agree- ment or institutional rules. Under the DIA Rules 2021, hearings are held in private unless the parties agree otherwise, and there is an express confidentiality obli- gation on the tribunal and the institution. Notably, this provision binds the tribunal/DIA; any party-side confi- dentiality should be expressly agreed or ordered. Transparency Defaults in Treaty-Based ISDS Forums The 2022 amendments to the ICSID rules strength- ened transparency. Awards are now published by default unless a party objects within 60 days, impor- tant orders/decisions may be published, hearings are open to the public unless a party objects, and tribunals must protect “confidential or protected information”.
third-party funders and insurers as potentially bearing the identity of a party for conflict-checking and disclo- sure purposes (General Standard 6 (b); 2014 text and 2024 revisions). These Guidelines are widely used by tribunals seated in Denmark. Tribunals will generally likely place emphasis on TPF when assessing a claim for security for costs, depend- ing on the specific circumstances of the case. ICSID Cases Seated Outside Denmark (Guidance on Security for Costs) Tribunals have held that the mere existence of TPF is not, by itself, enough to justify security for costs (eg, EuroGas v Slovakia , ICSID ARB/14/14). Conversely, in exceptional circumstances (notably a track record of non-payment), security has been ordered and TPF was treated as a relevant factor (eg, RSM v Saint Lucia , ICSID ARB/12/10). Under the ICSID 2022 Rules, Rule 14 requires the dis- closure of funders (including ownership/control of a corporate funder), and Rule 53 expressly empowers tribunals to order security for costs, directing them to consider “all relevant circumstances”, including the existence of TPF – but TPF remains only a factor, not a presumption. 7. Other Procedural and Evidentiary Issues 7.1 Notice of Dispute and Consultation Period No Danish Statutory Pre-Conditions for Treaty Claims Danish law does not prescribe pre-arbitration “notice” or “cooling-off” steps for investor–state claims. Those requirements flow from the applicable investment instrument and arbitral rules, not from the DAA. Substantive protections and access to ISDS vis-à-vis Denmark come from treaties (and, in contract cases, from the contract), not from Danish statutes.
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