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( Source of the document: ICC Digital Library )
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
Implementing jurisdiction: Denmark.
At the time of its ratification of the New York Convention, Denmark made a reservation for the Faroe Islands and Greenland. Regardless of this reservation, the 1972 Danish Arbitration Act also implemented the New York Convention for the Faroe Islands and Greenland. The reservation was subsequently withdrawn.
(Sources: Government Notice No. 58 of 19 June 1973; Royal Decrees Nos 460 and 461 of 9 Sept. 1975.)
The 1972 Danish Arbitration Act has been replaced by the 2005 Danish Arbitration Act, but not for the Faroe Islands and Greenland. The Faroe Islands and Greenland will remain governed by the 1972 Danish Arbitration Act until the DAA is extended to these territories.
(Source: s. 44 of the 2005 Danish Arbitration Act, No. 553 of 24 June 2005, hereinafter 'DAA'.)
Note: If not otherwise stated, these answers do not apply to the Faroe Islands and Greenland.
2. Date of entry into force of the New York Convention
Denmark's ratification instrument was deposited with the General Secretary of the United Nations on 22 Dec. 1972. In accordance with Art. XII(2) of the New York Convention, it became binding upon Denmark on 21 Mar. 1973.
Under Danish law, treaty obligations are only binding before domestic courts to the extent they are implemented by statute. The implementing statute was the 1972 Arbitration Act (No. 181 of 24 May 1972, in force as of 1 July 1972), which was replaced by the DAA in 2005 (cf. Q.1).
(Source: Government Notice No. 58 of 19 June 1973.)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
Denmark has made a declaration under Art. I(3) of the New York Convention that the Convention shall only apply to the recognition and enforcement of awards rendered in another Contracting State. However, as indicated in Q.4, notwithstanding such reservation, the DAA is more liberal and allows for the recognition and enforcement of all foreign arbitral awards, regardless of their country of origin.
(Sources: Government Notice No. 58 of 19 June 1973; DAA, s. 38(1).)
(b) commercial relationships?
Denmark has made a declaration under Art. I(3) of the New York Convention that it will apply the convention only to commercial legal relationships.
Nevertheless, both the 1972 Danish Arbitration Act and the DAA are more liberal and allow for the recognition and enforcement of all foreign arbitral awards, whether or not they concern a commercial relationship.
(Source: DAA, s. 7(1).)
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement is sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
The DAA does not distinguish between domestic and international awards for purposes of recognition and enforcement under the New York Convention. It follows from DAA, s. 38, that, subject to the provisions of s. 39, an arbitral award shall be recognized as binding and shall be enforced 'irrespective of the country in which it was made'. Therefore, the same rules apply to international awards rendered in Denmark as elsewhere.
(Source: DAA, s. 38.)
Special rules apply in relation to the recognition and enforcement of foreign arbitral awards under the 1961 Geneva Convention on International Commercial Arbitration. Since this Convention falls outside the scope of the present questionnaire, reference is simply made to the applicable provisions in ss. 3(2) and 9-13 of Government Notice No. 117 of 7 Mar. 1973 on the recognition and enforcement of foreign arbitral awards and on international commercial arbitration. The Danish government has stated its intent to denounce the Geneva Convention. Until such time, DAA, s. 40(5), upholds certain articles from the Geneva Convention.
(Source: DAA, s. 40(5).)
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
(i) DAA s. 38(1), as referred to in Q.4 above.
(ii) ss. 478-480, 487-506 and 528-536 of the Danish Court Procedures Act (hereinafter 'DCPA'), as made applicable to arbitral awards by DAA, s. 38(1).
In general, Danish law is more favourable to the recognition and enforcement of foreign arbitral awards than the New York Convention.
C. Limitation periods (time limits)
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
There is no limitation period specifically applicable to recognition and enforcement of foreign (or domestic) awards in Danish law.
However, according to the 2007 Danish Act on the limitation of monetary claims (s. 5, cf. s. 2), a 10-year period of limitation applies to monetary claims which have been established by 'binding decision', including arbitral awards. No similar statute of limitation exists for non-monetary claims.
(Source: Act No. 522 of 6 June 2007 on the limitation of monetary claims, s. 5, cf. s. 2.)
The 2007 Act on the limitation of monetary claims came into force on 1 January 2008 and will therefore apply to arbitral awards rendered as from that date. Before that, a 20-year statute of limitation applied pursuant to a 1908 Act on the limitation of monetary claims (Act No. 274 of 22 Dec. 1908).
(Source: Act No. 522 of 6 June 2007 on the limitation of monetary claims, s. 2.)
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
As stated in Q.6(a), a 10-year limitation period for monetary claims applies to arbitral awards rendered on or after 1 January 2008. This limitation period also applies to monetary claims that have been established by arbitral awards rendered before that date (even though, at that time, the limitation period was 20 years). The limitation period starts running from the date on which the creditor may claim payment (the due date) according to the decision. The limitation period is suspended when legal steps are taken to claim the debt. Following such steps, a new limitation period starts when a decision is made or a settlement agreement is entered.
(Source: Act No. 522 of 6 June 2007 on the limitation of monetary claims, ss. 2, 5, 16, 19(3) and 30(1).)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
There are no specific rules governing the jurisdiction of Danish courts over recognition and enforcement of foreign or domestic arbitral awards. An action for recognition and enforcement of a foreign award may thus be brought before any Danish court of first instance. Also, a levy court (fogedret, a division of the local city court) has jurisdiction over recognition and enforcement of foreign or domestic arbitral awards according to the provisions of DCPA, s. 487. Recognition and enforcement proceedings can take place, inter alia, at the place where the debtor resides, conducts business or holds assets.
(Source: DCPA, sec. 224-227, 235-247 and 487.)
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of the respondent in the jurisdiction, etc.)?
Jurisdiction over recognition and enforcement of foreign arbitral awards is normally assumed by the court (i) at the place where the respondent is domiciled or has its place of business or (ii) in the absence of a binding agreement between the parties on forum, at the place where the respondent has assets.
(Source: DCPA, ss. 235-247.)
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The first decision granting or denying recognition and enforcement is obtained through inter partes proceedings.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
(b) How many levels of appeal or recourse are available against this decision?
As a general rule, at least one and possibly two.
If the case is decided by a City Court, appeal or recourse can be made to the competent High Court. In special circumstances, permission may be granted to appeal a High Court decision before the Supreme Court.
If the case has been heard at first instance by a High Court, an appeal can always be made to the Supreme Court in the last instance.
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets?
A levy court procedure for execution against the respondent's assets, and more generally for the enforcement of an arbitral award, may be initiated after a lapse of two weeks from the date on which the award was rendered (e.g. if the award is rendered on 1 March, an application for execution against the respondent's assets, and more generally for the enforcement of an arbitral award, may be submitted to the levy court on 16 March at the earliest). Execution against assets means that the levy court will take possession of the assets and, where property is claimed, hand them over to the creditor. In the case of monetary claims, the levy court will proceed by way of auction. If the arbitral award is challenged before a court, the levy court may, at its discretion, decide to stay the execution and enforcement proceedings.
If the award provides for a different time frame for execution, this time frame replaces the aforementioned period of two weeks prior to execution.
(Source: DCPA, s. 480(1), as made applicable by DAA, s. 38(1).)
E. Evidence required
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. the arbitral award, the contract containing the arbitration clause, affidavits, witness statements, etc.)?
The following evidence must be supplied: (i) the arbitral award and (ii) the arbitration agreement, if the agreement is in writing (Danish law does not require arbitration agreements to be in writing).
(Source: DAA, s. 38(2).)
(b) Is it necessary to provide the entire document or only certain parts (e.g. the entire contract or only the arbitration clause)?
It is necessary to supply: (i) the award in its entirety and (ii) the relevant parts of the document containing the arbitration clause, if the agreement is in writing (Danish law does not require arbitration agreements to be in writing).
(c) Are originals or duly certified copies required?
An original or a certified copy of the award is required.
Since Danish law does not require arbitration agreements to be in writing, there is no requirement to provide the arbitration agreement in its original (written) form. However, if the arbitration agreement is in writing, a duly certified copy thereof is required.
(d) How many originals or duly certified copies are required?
DCPA, s. 348(4), requires the plaintiff to file 'copies' of the documents in the file. Apart from the specific rules on arbitration agreements and awards (cf. Q.12(c)), there are no requirements for other documents in the file to be submitted in original or certified copies. It is common practice to file 4 copies in a court with three presiding judges, and 2 copies in a court with one presiding judge.
(e) Does the authority or court keep the originals that are filed?
A Danish court would usually keep the original documents in the file, unless a party requests their return.
(a) Is it necessary to provide a translation of the documents supplied?
Danish is the language of Danish courts. Documents in foreign languages must be filed with a translation unless both parties agree not to have a translation filed and if the court is comfortable with the foreign language in question. Usually, a Danish court will read Norwegian, Swedish and (in most cases) English. Documents in other languages will usually have to be translated into Danish. This pragmatic approach is reflected in DAA, s. 38(2), which calls for Danish translations 'if necessary'.
Nordic citizens may produce documents in their own language. If required by another party or if the court considers it necessary, such documents will be translated into Danish on the court's initiative.
(Sources: DCPA, s. 149 ; DAA, s. 38(2).)
(b) If yes, into what language?
(Sources: DCPA, s. 149; DAA, s. 38(2).)
(c) Is it necessary for the translations to be certified and, if yes, by whom (by an official or sworn translator or by a diplomatic or consular agent (of which country?) or by some other person)?
If the court requires a document in a foreign language to be translated into Danish, the translation must be verified by an authorized translator. Authorized translators are required to have passed certain language examinations.
(Sources: DCPA, s. 149(2); Government Notice No. 29 of 17 January 1992.)
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. the entire award or only the part setting forth the decisions; the entire contract or only the arbitration clause)?
As indicated above in Q.12(b), it is necessary to produce the award in its entirety and a certified copy of the arbitration agreement (e.g. the relevant page of a written contract containing the arbitration clause). Whether it is 'necessary' to translate the award and the arbitration agreement depends on the position of the parties and the court (cf. Q.13(a)).
F. Stay of enforcement
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
Yes. A Danish court may stay legal proceedings for recognition or enforcement pending the outcome of an application for setting aside or suspending the award.
(Sources: DCPA, s. 345; DAA, s. 39(3).)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
In general, a court may, at its own discretion, decide to stay proceedings for recognition or enforcement of foreign arbitral awards-e.g. pending the rendering of 'an administrative or judicial decision' or when it is known that the parties are in settlement negotiations-if the court considers such a stay to be 'necessary'. The court's decision to stay the proceedings is subject to appeal.
(Source: DCPA, s. 345.)
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
If the court in which the recognition or enforcement of an award is sought is presented with a request to stay proceedings on grounds that an application to set aside or suspend the award has been submitted to another court, the party seeking recognition or enforcement of the award can ask the court to order the other party to provide appropriate security. Only in such cases may security be required as a condition for granting a stay.
(Source: DAA, s. 39(3).)
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
Documents filed in legal proceedings for recognition and enforcement are not part of the public record in the sense that access to such documents is not granted to everyone. However, any person or entity with a personal and reasonable interest in a legal issue in the case has a right to access documents. Access can only be granted if the documents are deemed necessary for considering the legal issue in question. There is no public access to internal working documents, e.g. documents prepared by the court for its own use and deliberation notes. There is only limited access to documents containing private information or trade secrets, if, on balance, the interest of the party requesting access is found to be less substantial than that of the party requesting confidentiality, and if the interest of the latter party cannot be satisfied by removing names.
It is up to the court to decide whether access should mean simply consulting documentation in the court registry or taking copies. Copying is generally allowed, unless there are special considerations as set forth above (trade secrets etc.).
(Source: DCPA, s. 41(d).)
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
As a general rule, court hearings on recognition and enforcement are open to the public, unless otherwise provided by law. As an exception to that rule, the doors can be closed if a public hearing would cause unnecessary harm to anyone, e.g. if testimony is to be given on trade secrets.
(Source: DCPA, ss. 28a and 29(1)(3).)
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business secrets or State secrets)?
There are no legal rules on how judgments in general are published in Denmark, and no rules specifically on how judgments on the recognition and enforcement of arbitral awards are published. Some courts (including the Supreme Court and the Copenhagen Maritime and Commercial Court) make their judgments public on the internet.
Certain High Court judgments and almost all Supreme Court judgements are published in the weekly law reporter Ugeskrift for Retsvæsen and in a database of its contents made available by Karnov Group Denmark A/S (www.karnovgroup.dk). Under the terms of the permission given by the Danish Protection Agency (Datatilsynet) to Karnov Group Denmark A/S on 24 May 2002, judgments containing confidential information must be rendered anonymous.
A party may request the court or Karnov Group Denmark A/S to make such confidential information anonymous. In general, this involves removing names and, in certain cases, references to places.
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
There are no specific statutory provisions on the recognition and enforcement of interim or partial awards. Awards that are partial, in the sense that they decide as a final matter one or more specific claims or counterclaims prior to the rendering of the final award, can be recognized and enforced provided that such recognition or enforcement is expressly decided in the award. However, execution can be conditional upon the applicant's providing security.
(Sources: DCPA, s. 253; DAA, s. 19(2).)
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. an order requiring a party to deliver up share certificates or other property)?
As a general rule, it is possible to obtain recognition and enforcement in Denmark of foreign awards granting non-monetary relief. The execution of such relief follows the rules of DCPA, c. 48 (ss. 528-536). The levy court is responsible for the enforcement of such claims, assisted by local police if necessary.
(Source: DCPA, ss. 528-536.)
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
The applicant can request and obtain recognition and enforcement of only part of the relief granted in a foreign award.
If recognition or enforcement is refused on grounds pertaining to part of the award, then only that part of the award may be refused recognition or enforcement. If, for example, a court concludes that some claims in the award were not arbitrable, then the court will not enforce the part of the award that decides such claims and may enforce the rest of the award.
(Source: DAA, s. 39(2).)
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Article V(1)(e) of the New York Convention?
In practice, never. Under Danish private international law, a Danish court will have to recognize the judgment of a competent foreign authority that set aside a foreign award and thus consider this award null and void.
In theory, however, it may be argued that if a Danish court considers that the foreign judgment on the validity of the foreign award is not enforceable in Denmark on grounds of Danish public policy, the Danish court may make its own decision on the question of the invalidity of such award. However, there is no Danish case law on this subject.
If only part of the award is set aside (e.g. decisions on certain claims but not others), the other parts of the award remain enforceable.
(Source: General principles of Danish private international law.)
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
A court fee of DKK 300 (approx. € 40) plus 0.5 per cent of the amount sought to be enforced (excluding the first DKK 3,000 (approx. € 400) is payable (e.g. if the amount sought to be enforced is DKK 1 million (approx. € 134,000), a fee of DKK 5,285 is payable (approx. € 700)).
(Source: Court Fees Act, s. 16 (cf. Consolidated Act No. 936 of 8 Sept. 2006, as amended).)
Mads Bryde Andersen