DENMARK Law and Practice Contributed by: Thomas Norvold, Søren Locher, Anne Mie Lund and Pawel Weigel, Fabritius Tengnagel & Heine
13.2 Subject Matters Not Referred to Arbitration The primary rule is that parties may agree to arbitrate all civil matters over which they legally have the free- dom to dispose. Matters that parties cannot agree upon (in dispositive matters) cannot be subject to arbitration. Arbitration can be agreed upon for disputes that have already arisen or for future disputes arising from a specific legal relationship, whether within or outside a contractual relationship. In cases involving con- sumer agreements, an arbitration agreement entered into before the dispute arises is not binding on the consumer. 13.3 Circumstances to Challenge an Arbitral Award According to the Danish Arbitration Act, an arbitral award can be set aside if the party requesting this can prove that: • one of the parties to the arbitration agreement lacked legal capacity under the law of the country where they had their domicile at the time of enter- ing into the agreement, or the arbitration agree- ment is invalid according to the law chosen by the parties or, in the absence of such choice, accord- ing to Danish law; • the party requesting the setting aside did not receive proper notice of the appointment of an arbitrator or the proceedings of the arbitration, or was unable to present their case for other reasons; • the arbitral award deals with a dispute not covered by the arbitration agreement or decides on issues outside of the scope of the arbitration agreement; or • the composition of the arbitral tribunal or the conduct of the arbitration proceedings was not in accordance with the agreement of the parties or the Danish Arbitration Act. In addition, an arbitral award can be set aside if the court finds that: • the nature of the dispute is such that it cannot be resolved through arbitration; or
In connection with the initial preparatory court hearing (see 7.1 Trial Proceedings ), the possibility of reaching a settlement is normally an agenda item. Outside the court system, arbitration is the most pop- ular form of ADR. There are also professional institu- tions that offer mediation. 12.2 ADR Within the Legal System ADR is voluntary in the Danish legal system. If a party declines mediation, there are no associated sanctions. See also 12.1 Views of ADR Within the Country . 12.3 ADR Institutions In Denmark, there are several professional ADR insti- tutions, including the Danish Mediation Institute, the Danish Institute of Arbitration (DIA) and the Danish Building and Construction Arbitration Board, the latter of which is a sector-specific institution that handles disputes within the field of building and construction. It is common in this legal area to include ADR clauses in agreements. The DIA is a non-sector-specific institution that han- dles various types of disputes. The Danish Arbitration Act is the primary legislation in Denmark governing arbitration, providing the frame- work for arbitration in the country. It is largely based on the 1985 UNCITRAL Model Law. Denmark has acceded to the New York Convention of 1958, concerning the mutual recognition and enforce- ment of arbitration awards. The Danish Arbitration Act includes an exhaustive list of grounds that can lead to the refusal of recognition or enforcement; see 13.3 Circumstances to Chal- lenge an Arbitral Award . 13. Arbitration 13.1 Laws Regarding the Conduct of Arbitration
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