DENMARK Law and Practice Contributed by: Josefine Movin Østergaard and Johannes Hedegaard, Bruun & Hjejle
sloven ), a pre-dispute arbitration agreement is not binding on the consumer. Arbitration is therefore rarely used in consumer insurance disputes. The primary avenue for consumers is the Danish Insur- ance Complaints Board ( Ankenævnet for Forsikring ). In practice, insurers overwhelmingly comply. In 2023, the Danish Mediation Institute ( Mediation- sinstituttet ) and Forsikring & Pension (F&P), the trade association representing the insurance industry, entered into a cooperation agreement. Under this agreement, member insurers commit to offering medi- ation as an alternative dispute resolution mechanism in consumer disputes. The initiative provides policy- holders with a less adversarial avenue for resolving insurance disputes outside the traditional complaints board process or court proceedings. 2. Jurisdiction and Choice of Law 2.1 Choice of Law in Insurance Contracts The Danish choice-of-law rules for insurance con- tracts are, to a certain extent, governed by Directive 2009/138/EC (“Solvency II Directive”), and through the Solvency II Directive – by Article 7 of Regulation No. 593/2008 (“Rome I Regulation”). Where an insur- ance contract falls outside the scope of the Solvency II Directive, the Convention on the law applicable to contractual obligations (“Rome Convention”) applies instead. The Solvency II Directive The Solvency II Directive was implemented into Danish law in 2015 by the issuance of the Executive Order on choice of law for certain insurance contracts ( Bekend- tgørelse om lovvalg for visse forsikringsaftaler ), which entered into force on 1 January 2016. The Solvency II Directive applies to life insurance and non-life insurance undertakings established in the territory of an EU Member State. Article 178 of the Directive requires that the choice of law in such con- tracts be determined in accordance with Article 7 of the Rome I Regulation. Consequently, even though Denmark has not implemented the Rome I Regulation
as such, Article 7 applies in Danish law through the Solvency II Directive. Large Risks Under Article 7 of the Rome I Regulation, insurance contracts covering large risks (as defined in Article 13 (27) of the Solvency II Directive, which typically con- cern commercial activities such as corporate liability and transport insurance) are governed by the law cho- sen by the parties. In the absence of such a choice, the insurance con- tract is governed by the law of the country where the insurer has its habitual residence, cf. Article 7 (2), sec- ond subparagraph. The default rule may be displaced where it is clear from the circumstances as a whole that the contract is manifestly more closely connected with another country, in which case the law of that oth- er country applies, cf. Article 7 (2), second paragraph. Other Risks It is also possible to agree on a choice of law in insur- ance contracts that do not cover large risks (typically consumer insurance). However, the parties may only choose among the options listed in Article 7 (3). These include, for example, the law of the member state in which the risk is situated at the time of conclusion of the contract, or the law of the country in which the policyholder has his habitual residence. For life insur- ance contract, a choice of law is limited to the law of the EU member state of which the policyholder is a national, cf. Article 7 (3)(c). Where the parties have not agreed on a choice of law in accordance with the options listed in Article 7 (3), the contract is governed by the law of the member state in which the risk is situated at the time of the conclusion of the contract, cf. Article 7 (3), last sub- paragraph. The Rome Convention The Rome Convention applies in Denmark to the extent that the Solvency II Directive does not. Since Article 7 of the Rome I Regulation does not apply to reinsurance contracts, cf. Article 7 (1), last sentence, the Rome Convention’s choice-of-law rules are pri- marily relevant for reinsurance contracts. Denmark
87 I NSURANCE L I T IGATI O N 2026
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