DENMARK Law and Practice Contributed by: Johannes Hedegaard and Tobias Bøgh, Bruun & Hjejle
According to Section 39 of the Danish Arbitration Act, the grounds for refusal are divided into (i) grounds for refusal at the request of the party against whom the award is being invoked, and (ii) grounds for refusal that are not subject to the free disposal of the parties (“indispositive grounds”), and which must be applied by the court on its own motion (ex officio). It should be noted that it is not possible to derogate from Section 39 by agreement. The grounds for refusal at the request of the party against whom the award is being invoked include the following. • One of the parties to the arbitration agreement was under some incapacity or the agreement is not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made. • The party against whom the award is invoked was not duly notified of the appointment of an arbitrator or of the arbitration proceedings, or was otherwise unable to present its case. For example, in the Danish Supreme Court’s judgment of 20 March 2025 (published in UfR 2025.1922 H), enforcement of an arbitral award issued by the Shanghai Arbitra - tion Commission was refused on the grounds that the party requesting enforcement had not demon - strated that the party against whom enforcement was sought had received proper notice and thus had the opportunity to present its case. • The award deals with a dispute not considered by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submit - ted to arbitration can be separated from those not so submitted, that part of the award which con - tains decisions on matters submitted to arbitration may be recognised and enforced. • The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place. • The award has not yet become binding on the par - ties, or has been set aside or suspended by a court
of the country in which, or under the law of which, that award was made. However, this particular grounds for refusal does not apply in instances where the country in which an award has been set aside or suspended is a party to the European Convention on International Commercial Arbitration of 21 April 1961 (the Geneva Convention). • The burden of proof lies with the party against whom the award is being invoked. In addition, the court must, of its own motion, refuse to enforce an arbitral award if the following conditions apply: • the subject matter of the dispute cannot be settled by arbitration under the laws of Denmark; or • the recognition or enforcement of the award would be contrary to the public policy of Denmark ( ordre public ). Thus, enforcement may not be refused solely on the basis that the arbitral tribunal misapplied the law or misjudged the facts. With regard to the ordre public reservation, the Danish Supreme Court has (in a case published in the Danish Weekly Law Reports (UfR 2016.1558/2 H)) established that an arbitral award can only be set aside accord - ing to this provision in exceptional cases where the arbitral tribunal has committed such extremely seri - ous errors that the arbitral award is manifestly incom - patible with Danish public policy. It is insufficient for an award to be contrary to mandatory rules of law in isolation. If the grounds for refusal only apply to a part of the arbitral award, then only that part will be refused enforcement (see Section 39 (2) of the Danish Arbi - tration Act). If an application for the setting aside or suspension of an arbitral award has been submitted to a competent court, the enforcement proceedings may be stayed, or the party seeking enforcement may be ordered to provide adequate security (see Section 39 (3) of the Danish Arbitration Act).
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