DENMARK Law and Practice Contributed by: Josefine Movin Østergaard and Johannes Hedegaard, Bruun & Hjejle
has implemented the Rome Convention where the risk was situated in an EU member state. Under the Rome Convention, the parties are free to choose the applicable law, cf. Article 3. In the absence of a choice, the contract is governed by the law of the country with which it is most closely connected, cf. Article 4. Non-Contractual Choice of Law The Rome II Regulation (Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations) applies in all EU member states except Denmark. As a result, choice of law in non-contractual liability mat- ters is not governed by statute in Denmark and must be determined according to unwritten Danish choice- of-law principles. The traditional starting point is the lex loci delicti principle, under which tort claims are governed by the law of the place where the damage occurred ( skadestedet ). In cases of distance delicts, where the harmful act is committed in one country while the effect occurs in another, the lex loci delicti principle encompasses both the place of conduct (more precisely, lex loci delicti commissi) and the place of effect (more pre- cisely, lex loci damni). In recent decades, following the Supreme Court judg- ment reported in UfR 1999.255 H, which emphasised the place of effect, legal scholarship predominantly emphasises the place of effect as determinative for choice of law. For recourse claims ( regreskrav ), the general rule is that such claims are governed by the same law as the underlying claim from which the right of recourse derives – similar to Article 20 of the Rome II Regu- lation. This principle was recently affirmed by the Eastern High Court ( Østre Landsret ) in its ruling of 1 April 2026, in proceedings brought by several insur- ance companies that had been subrogated into the insured’s position and sought recourse against a third party. 2.2 Jurisdiction and Forum Selection Danish courts generally uphold jurisdiction clauses in commercial insurance contracts under the principle of
party autonomy, cf. Section 245 (1) of the Administra- tion of Justice Act ( retsplejeloven ). For parties domiciled in EU member states, juris- diction is assessed under Article 25 of the Brussels I Regulation, but Articles 15–16 impose restrictions for insurance contracts. A jurisdiction agreement in insurance matters may only deviate from the default rules if it: • was concluded after the dispute arose; • expands the policyholder’s forum options; • designates the courts of the member state where both parties were domiciled at contracting; • involves a policyholder not domiciled in a member state (with exceptions); or • covers “large risks” under Article 16, including marine, aviation, transport and Solvency II large risks. A valid jurisdiction clause deprives otherwise compe- tent courts of jurisdiction. Cases brought in violation will be dismissed under Section 248, cf. Section 245 (1), of the Administration of Justice Act, or under Sec- tion 8 (1), cf. Section 4, of the Danish Arbitration Act for arbitration agreements ( voldgiftsloven ). A highly debated procedural question concerns direct claims: whether a party can validly enforce a juris- diction or arbitration agreement with another party to have a third party’s claim rejected by the courts. In Danish case law, the courts have allowed such enforcement where the direct claim has been deemed contractual in nature (UfR 1983.123 H; UfR 2001.1529 H). In certain cases, the courts have even enforced arbitration agreements in tortious direct claims, pro- vided there were identical agreements in every link of the contractual chain (UfR 2014.2042 H). Under Arti- cle 25 of the Brussels I Regulation, however, jurisdic- tion agreements can only be enforced against parties who have consented in accordance with its formal requirements. Although the Court of Justice of the European Union has developed a principle allowing enforcement against a third party that has succeeded into one of the original parties’ rights and obligations, this principle does not extend to direct claims. The Brussels I Regulation therefore generally does not
88 I NSURANCE L I T IGATI O N 2026
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