Litigation 2025

DENMARK Trends and Developments Contributed by: Jacob Skude Rasmussen, Catherine Schutz and Alexander Højmark, Gorrissen Federspiel

companies are “greenwashing” in violation of the DMA have increased. One notable claim was brought by the Dan- ish Vegetarian Society and the Danish Climate Movement against Danish Crown, the EU’s larg- est pork producer. Danish Crown had used the advertising slogans of “climate-controlled pigs” and “Danish pork is more climate-friendly than you think”, which the Danish Vegetarian Society and the Danish Climate Movement argued mis- led consumers into believing that the produc- tion of pork improved the climate, which Danish Crown could not validate. The claim was brought in June 2021, and in March 2024 the Western High Court issued a judgment that found Danish Crown guilty of mis- leading marketing. Specifically, the Western High Court found that the term “climate-controlled pig” was misleading but the term “Danish pig is more climate-friendly than you think” is not misleading. However, the Western High Court stopped short of imposing a ban on the mar- keting term of “climate-controlled pig”, holding instead that Danish Crown must pay legal costs to the Treasury. Expected increase in commercial litigation and arbitration involving ESG issues Increasingly, ESG obligations are also being imposed directly upon companies by state actors. For example, by 26 July 2026, EU mem- ber states are required to adopt the Corporate Sustainability Due Diligence Directive (CSDDD), which obliges companies to conduct appropriate human rights and environmental due diligence in their operations. Similarly, on 6 March 2024, the US Securities and Exchange Commission (SEC) adopted rules that require public companies in the US to disclose climate change-related infor- mation in their SEC filings.

Even if ESG obligations are not explicitly demanded by a state entity, companies are increasingly choosing to build ESG obligations into their KPIs, goals and values voluntarily. This is no doubt partly in response to consumer pres- sure for companies to act in accordance with ESG principles, but ESG principles may also be central to the company’s success and perfor- mance itself. One way that companies could strive to meet these obligations is by including ESG-related clauses in their contracts. For example, com- panies could require that their sub-suppliers manufacture and deliver the products purchased in accordance with ESG principles. This kind of clause is already promoted by some legal organ- isations, such as the American Bar Association, which has developed model contract clauses to protect workers in international supply chains. As such ESG clauses become more and more common, it is expected that more and more of these model clauses will be developed. These obligations will likely give rise to an increase in the number of ESG-related disputes that find their way to the Danish courts or arbi- tral systems. Litigation between companies and individuals or state actors about whether a company has met its ESG obligations will most likely end up in Danish court. However, con- tractual disputes around ESG clauses will likely also end up in Danish arbitration. For example, if Danish companies require their sub-suppliers, or are required by their contracting party, to meet certain ESG goals through their performance, whether or not these goals have been met will no doubt be subject to dispute. And if the contract has an arbitration clause, those disputes will end up in arbitration if they cannot be resolved beforehand.

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