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 Denmark’s pending Klesch Group Holdings Ltd, Klesch Refining Denmark A/S and Kalundborg Refin - ery A/S v Kingdom of Denmark case, the tribunal has already issued a procedural order on transparency, underlining that transparency is actively managed from the outset where public interests (energy mar- For UNCITRAL arbitrations under treaties concluded on or after 1 April 2014, the Rules on Transparency apply by default (publication of key documents, open hearings, third-party submissions), subject to the pro- tection of confidential information. For pre-2014 treaties, the Rules apply only if the treaty or disputing parties so provide, or via the Mauritius Convention on Transparency. On 22 May 2025, the EU concluded the Mauritius Convention, committing to apply the Transparency Rules to covered pre-2014 treaties within EU competence (notably relevant for the ECT when UNCITRAL rules are used). Intra-EU Overlay Within the EU, intra-EU ISDS under BITs/ECT is inap- plicable following the Achmea/Komstroy cases and the 2020 agreement mentioned in 1.1 National Posi- tion ; Denmark’s modern transparency posture in UNCITRAL treaty cases is therefore most relevant for extra-EU matters and for the ECT while it still applies. kets, fiscal measures) are engaged. UNCITRAL Transparency Rules 8. Damages and Valuation 8.1 Remedies National arbitration law does not enumerate or cap remedies. The DAA contains no list of permissible remedies. It provides for the recognition/enforcement of arbitral awards subject only to standard New York Conven- tion-type defences, such as public order. While investment tribunals can order non-pecuni- ary remedies (eg, specific performance/injunctions) – and some have (ie, Goetz v Burundi ) – Article 54 of the ICSID Convention obliges contracting states to enforce only the pecuniary obligations of ICSID
awards. Non-pecuniary orders in ICSID awards may thus face enforcement constraints; by contrast, non- ICSID awards seated outside ICSID are enforceable under the New York Convention without that “pecu- niary-only” limitation. Lastly, punitive damages are not recognised under Danish arbitration law. An award granting such puni- tive damages risks being set aside or not enforced under the DAA – eg, on grounds of public order. 8.2 Methodologies for Quantum Assessment There are no Denmark-specific statutory methodolo- gies for assessing damages in investor–state disputes or in general liability cases. Tribunals seated in Denmark or court cases with claims against Denmark typically apply international law and the treaty/contract standard. They often apply FMV at the valuation date for expropriation, and then select a suitable method based on the evidence. Other typical methods for valuation of damages include: • discounted cash flow for going concerns with reli- able projections; • market-based approaches (comparable transac- tions/companies); and • cost-based approaches (book value/replacement cost) where appropriate. These are the approaches mapped in UNCTAD’s anal- yses of ISDS damages and valuation practice. Many Danish BITs and the ECT (when applicable) specify FMV plus interest for lawful expropriation. In practice, however, energy disputes like the pend- ing Klesch Group Holdings Ltd, Klesch Refining Den - mark A/S and Kalundborg Refinery A/S v Kingdom of Denmark arbitration illustrate a different posture, whereby the investor seeks repayment of a solidarity contribution levy rather than valuation of the refinery business itself. In such scenarios, the remedy often takes the form of refund plus interest, although this is not a uniform
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