The Dispute Resolution Review: Denmark
Introduction to the dispute resolution framework
The Kingdom of Denmark comprises Denmark, Greenland and the Faroe Islands. In general, Denmark, Greenland and the Faroe Islands share a legal system and culture, but certain features of Greenlandic and Faroese law are not found in the Danish legal system.
Danish and indeed Nordic law share several common denominators with continental European legal systems. Notwithstanding this, the legal systems of the Nordic countries have evolved with their own distinctiveness and, despite many common law traits, Denmark and its fellow Nordic countries constitute a legal family of their own.
Danish law is characterised by extensive bodies of systematic and written law. Statutes are the main sources of law. Preparatory works, case law and legal doctrine are secondary sources of law. Civil law is dominated by a range of individual statutes and, in some areas, by unwritten law guided mainly by cases and custom. Generally, criminal law is governed by the Criminal Code,2 and administrative law is governed by two statutes of public administration3 and a complex body of sector-specific statutes.
Denmark's membership of international organisations and participation in international conventions have changed its legal landscape notably throughout the past 50 years. Since 1973, Denmark has been a member of the European Union, which has significantly influenced the Danish legal system. Denmark has four opt-outs from EU cooperation. The opt-outs were agreed among the Member States following a referendum in 1992 where a majority in Denmark voted no to the Maastricht Treaty. The opt-outs are outlined in the Edinburgh Agreement4 and concern the monetary union, common security and defence policy, justice and home affairs, and citizenship of the European Union.
Denmark has held two referenda on the opt-outs. In 2000, the Danes voted no to the euro. As a consequence, Denmark has kept the krone as its currency. In 2015, the Danes voted against an opt-in model for Denmark's participation in justice and home affairs.
Denmark is also a party to the European Convention on Human Rights, which has conferred a number of legal guarantees and standards on the courts and court procedure in both civil and criminal cases.
Executive, legislative and judiciary powers in Denmark are divided among the government, the parliament and the courts, respectively. This is a fundamental principle that has been enacted by the Danish Constitution since it was adopted in 1849. The Constitution ensures the judiciary's organisational, functional and personal independence. It also provides the fundamental principles and standards on which the Danish legal system is built.
The Danish legal system is based on the two-tier principle, which means that the parties generally have the option of appealing the ruling of one court to a higher instance. Most cases begin at district court level with the option of appealing to one of the two High Courts.
In 2007, the Danish courts went through significant structural and organisational changes, often referred to as 'the statutory reform of court proceedings'.
Since 1 January 2007, the judiciary system has comprised:
- the Supreme Court;
- the High Courts;
- the Maritime and Commercial High Court;
- 24 district courts; and
- the Land Registration Court.
The courts of Greenland and the court of the Faroe Islands are also part of the Danish legal system. In addition to the courts, some sector-specific disputes may be settled by specialised bodies such as the Danish Press Council, the Danish Consumer Council and the Danish Bar and Law Society.
Finally, Danish law allows for the settling of disputes privately by way of arbitration or mediation. Arbitration is governed by the Arbitration Act,5 which is based on the UNCITRAL Model Law on International Commercial Arbitration. Institutional arbitration is widely used, and the Danish Institute of Arbitration plays an important role in relation to commercial disputes in Denmark. For example, the Institute has published suggestions for updating the Arbitration Act, including as regards interim remedies.
The year in review
Highlights from 2021 include four cases from the Danish Supreme Court. The first and second highlight the court's application of the Brussels I Regulation and the Lugano Convention, respectively, following European Court of Justice (ECJ) case law. The third provides guidance regarding whether partners of law firms, if they are not qualified lawyers, are exempt from providing witness testimony; and the fourth provides an example of how the court considers decisions made by authorities outside its jurisdiction and confirms the high threshold as regards public policy in actions for damages.
i Application of the Brussels I Regulation in Denmark6
The international shipping company, Maersk, transported goods as subcontractor for the carrier company DSV. Goods were lost at sea, for which DSV was sued, and DSV joined Maersk to the proceedings. The questions before the Supreme Court were whether DSV and Maersk had agreed to the use of Maersk's standard terms and conditions, which included a choice of court agreement, and whether such choice of court agreement should be set aside pursuant to the Danish Maritime Act.
The waybill referred to Maersk's standard terms and conditions. According to these, English law applied and the competent court was the High Court of Justice in London.
The Supreme Court first held that it agreed with the lower Danish High Court that DSV and Maersk had entered into a choice of court agreement owing to the evidence presented such as the booking system, information regarding sea freight correspondence and the customary procedure. The subsequent question was whether the choice of court agreement should be set aside pursuant to Section 310(1) of the Danish Maritime Act. Section 310(1) of the Danish Maritime Act states that any choice of court agreement entered into before a dispute has arisen is invalid if it limits the plaintiff's right to choose jurisdiction as regards one of four places (e.g., the defendant's head office or the agreed place of delivery). However, Section 310(5) of the Act states that Section 310(1) of the Act does not apply if the Brussels I Regulation7 provides otherwise. Regarding the application of this point, the Supreme Court disagreed with the lower High Court.
The Supreme Court found, citing EU reports and ECJ case law, that the factual circumstances of the case (e.g., that the goods were lost during transport from Shanghai, the contract was entered into by Chinese companies) were such that the case had a non-Danish (udlandet) connection so that the Brussels I Regulation was applicable, and accordingly the English courts had jurisdiction. In contrast to the Supreme Court, the Danish High Court had found that the Regulation did not apply because the principal companies were Danish, the place of delivery was Copenhagen and the goods' recipient was domiciled in Denmark.
The case demonstrates that the Danish Supreme Court confirms a broad interpretation regarding whether a case has a non-Danish connection so that the Brussels I Regulation applies. This broad interpretation aids the unification of the rules of conflict of jurisdiction in civil and commercial matters, as set out in Paragraph 4 of the Regulation's preamble.
ii Application of the Lugano Convention in Denmark8
A Danish bank (B) entered into a credit agreement with a Danish company (X). The agreement contained a choice of court clause designating jurisdiction in Denmark. An individual (A) signed the agreement on behalf of X in his capacity as the beneficial owner and CEO of X. A also signed as guarantor. B relied on the guarantee between it and A to pursue the latter for sums following the bankruptcy of X and of another guarantor.
The first question was whether the guarantee constituted a consumer agreement between A and B. If so, B would be restricted in enforcing the Danish choice of court clause against Swiss-resident A under the Lugano Convention. The Supreme Court agreed with the lower High Court that ECJ case law provides that if a physical person has a close commercial connection with a company, that person cannot be considered a consumer when he or she provides security for that company as regards a credit agreement. The Supreme Court agreed with the lower High Court that the consumer provisions of the Convention did not apply in this case because A was the beneficial owner and CEO of X at the time when he undertook the guarantee.
The second question was whether the choice of court clause fulfilled the in-writing requirement found at Section 23(1)(a) of the Convention. Although B had not signed the credit agreement, the Supreme Court agreed again with the High Court that the in-writing requirement had been fulfilled, with reference to ECJ case law, because there was concurrent will of the parties, which was expressed clearly and precisely. In this case, such will was demonstrated by the related documentation prepared and sent by B, and signed by A.
The case confirms the Danish courts' application of two particular points as regards interpretation of the Lugano Convention following ECJ case law: that an individual can be deemed not to be a consumer if he or she has a close commercial connection to a company, for example, as the beneficial owner and CEO, and that the in-writing requirement can be met if there is concurrent will of the parties, which is expressed clearly and precisely, for example, as demonstrated by related documentation sent between the parties.
iii Partners in law firms not covered by witness testimony exemption if not qualified lawyers9
A partner (D) in a law firm acted as legal adviser to buyers of a property. During subsequent court proceedings between the buyers and the seller's estate, the question arose whether D, as a non-qualified lawyer, could be questioned as a witness in the case. Further to Section 168(1) of the Administration of Justice Act, everyone, subject to exceptions, has a duty to provide witness testimony. Section 170 of the Administration of Justice Act sets out exceptions for those who have a duty of confidentiality, such as qualified lawyers and their assistants.
The Supreme Court found that D was not covered by the exceptions at Section 170(1) of the Administration of Justice Act, either as a qualified lawyer or as an assistant to such.
The case highlights that a legal adviser at a law firm, even a partner, may be required to provide witness testimony in a case if he or she is not a qualified lawyer who has a duty of confidentiality or is not an assistant to one.
iv High threshold regarding public policy in actions for damages in Denmark10
In 2013, a ship-to-ship-transfer of oil was attempted in the territorial waters of São Tomé and Príncipe. The authorities of São Tomé and Príncipe confiscated the oil on the basis that the transfer occurred without the required permission. The oil had belonged to a Swedish company, S. Following the confiscation, a group of companies, M, bought the oil from São Tomé and Príncipe.
The main question for the Supreme Court was whether M was liable in damages to S for buying the confiscated oil.
The Supreme Court found, among other points, that it must take into account that, under the laws of São Tomé and Príncipe, the confiscation was permitted and a buyer of goods, which were conclusively confiscated by the national courts, is not, as a starting point, liable in damages to the original owner.
The Supreme Court further found that there would have to be wholly (helt) extraordinary circumstances as regards public policy for a buyer to be liable in damages to the original owner following a confiscation order. An example of such circumstances would be if the goods originated from state piracy or similar acts, and the confiscation order was merely a façade to legitimise such acts. The Supreme Court did not find that S had established such extraordinary circumstances. Consequently, the Supreme Court gave judgment in favour of M, and S was not awarded damages.
The case provides an example of how the Supreme Court considers decisions made by authorities outside its jurisdiction, as well as confirms the high threshold regarding public policy in actions for damages.
Danish court proceedings are governed by the Danish Administration of Justice Act,11 which sets out detailed rules of procedure. The Administration of Justice Act was originally adopted in 1916 and is complex legislation with more than 1,000 provisions.
The Administration of Justice Act is based on three fundamental principles that are predominant in Danish judicial procedure: the principles of immediacy, orality and concentration.
According to the principle of immediacy, the court may only base its judgment on what has been said and argued at the main hearing. The principle of orality is rooted in Section 65(1) of the Danish Constitution. It entails that the parties, in principle, have to present their full case at the main hearing and that witnesses must appear before the court to give their testimony in person. The principle of concentration entails that the case should be heard and concluded at the main hearing, and that no new evidence should be presented during the main hearing.
The above principles mean that during the course of the proceedings parties are able to dispose materially of the subject matter of the case. In this context, the court plays a very limited role, although the court may ask questions if a party's allegations are unclear. Accordingly, the Danish court system may generally be described as an adversarial system.
Even if the above principles are predominant in court proceedings, they have been modified by means of a revision of the Administration of Justice Act in 2008. Following this revision, the parties are no longer required to read aloud all the documents and present all the facts on which they seek to rely, but may now refer to the case file instead. Furthermore, in special circumstances, the parties may now also present witness statements in writing.12 The purpose of the 2008 revision of the Administration of Justice Act was to increase the efficiency and speed of court cases.
Following this purpose of efficiency, since February 2018 communication with all Danish courts in civil cases must be through a specific court website.13 If a party has a Danish company or civil registration number, methods such as individual emails and letters are no longer possible. However, communication can be made at any time and parties have access to the case documents online.
In general, anyone can attend court proceedings. However, subject to certain criteria, the court may decide that the proceedings for the entire case or a part of it are conducted behind closed doors.
Danish law contains no formal rules in relation to the courts' evaluation of evidence and the level of proof required. The courts are not generally entitled to apply a subjective evaluation of the evidence in question but the principle of the courts' freedom of evaluation entails that the discretion of the courts is wide. Moreover, the courts are not bound by expert evidence.
i Overview of court procedure
In Denmark, civil disputes may be brought before the courts by natural and legal persons. Foreigners generally have the same procedural legal status as Danish nationals, and are therefore entitled to bring a civil dispute before the Danish courts provided that the Danish courts have jurisdiction. The defendant may demand that a foreign plaintiff provides security for the payment of the cost of the proceedings unless the plaintiff is a national of an EU country or of certain other countries.14
All cases are usually initiated before a district court as the court of first instance. However, the parties may request that the case is referred to a High Court or to the Maritime and Commercial High Court, or the district court may refer the case on its own motion if the case has general legal importance and is important for the application or the development of the law.
A fundamental principle of the Danish legal system is the two-tier principle. This principle allows the parties to appeal a judgment to a higher instance. If the case is brought before a district court (as the court of first instance), the parties may appeal the judgment to a High Court, and cases brought before a High Court at first instance may be appealed to the Supreme Court. Cases may be brought before the Supreme Court as the court of third instance if the case has general legal importance. The Appeals Permission Board decides whether a case may be tried at three instances.
District courts comprise ordinary civil and criminal courts. They also encompass enforcement courts and probate courts. Enforcement courts deal, inter alia, with enforcement of judgments and interlocutory remedies. The probate courts handle the administration of estates and insolvency cases, such as bankruptcies and applications for debt restructuring.
The High Courts are divided into a Western High Court and an Eastern High Court.
The Maritime and Commercial High Court is a special court with jurisdiction over market-related disputes, such as matters regarding competition and intellectual property cases, cases that have an international commercial dimension, and cases concerning sea, air or land transport.
The highest instance of the Danish court system is the Supreme Court. As noted, it is the court of appeal for judgments decided by the High Courts. The Supreme Court is also the court of appeal for judgments decided by the Maritime and Commercial High Court if a case has general legal importance and is important for the application or the development of the law; otherwise, the court of appeal is a High Court.
ii Procedures and time frames
Danish court proceedings can be divided into two phases: the preparation and the main hearing.
Civil proceedings commence when the plaintiff submits a statement of claim. The Administration of Justice Act sets out strict requirements as to the information required in a statement of claim,15 and the courts may dismiss a case if the statement of claim does not fulfil these requirements.
Upon the court's receipt of the statement of claim, court proceedings have officially been initiated. The court will then set a date for the defendant's submission of a statement of defence. Any claim for dismissal on formality grounds, such as lack of jurisdiction, shall be submitted in the statement of defence. If the defendant does not submit the statement of defence within the deadline set by the court, the court may issue a judgment in accordance with the plaintiff's claim. Following the first round of pleadings, the parties will normally be allowed to exchange further pleadings.
As part of the preparation phase, the court might summon the parties to appear at a preparatory meeting. During this meeting the court is in charge of the agenda and will set the deadlines of the procedural calendar, including, if possible, the date for the main hearing. If a party has submitted a claim for dismissal on formality grounds, the court may decide upon this claim separately, and an oral hearing may be held to deal with the issue.
During the preparation phase, the courts will normally refrain from making any actual examination of the evidence, the allegations or the claims. The court will restrict itself to managing the exchange of submissions during the proceedings and to looking into any formality issues. However, the court often has to decide on issues such as expert evidence, including the potential selection of a court-appointed expert.
Following the conclusion of the preparation phase, the parties will usually prepare a summary of submissions and the court will set a date for the main hearing if this has not been done earlier. The court decides when the preparation phase concludes, which is usually four weeks before the commencement of the main hearing.16 After this date, if a party wishes to submit new evidence, allegations or claims, the party has to inform the court and counterparty. A counterparty has one week to respond after which the court makes a decision on whether to accept the new submission. The court will make a decision even if a counterparty does not respond.
The main hearing may be divided into three subphases:
- the opening address;
- the presentation of evidence and the hearing of witnesses; and
- the closing arguments.
The first subphase is commenced upon each party's presentation of its claims before the court. Subsequently, the plaintiff's legal representative will review and explain the case to the court on the basis of the documents presented to the court by the parties. The defendant's legal representative is then invited to comment. The opening address must be objective.
The next subphase constitutes the parties' presentation of evidence and the hearing of witnesses. A witness is first examined by the party who called him or her, and then the counterparty is allowed a cross-examination.
At the closing arguments, legal representatives summarise the case and the legal points raised.
Following the closing arguments, the court will withdraw directly for its deliberations. The court must pass its final judgment as soon as possible following the hearing and usually within either four weeks or two months after the main hearing. The court may, at its own discretion, suggest a settlement or issue an advisory opinion but the parties may at any time request a final judgment.
On 1 January 2008, special rules governing small claims were introduced into the Administration of Justice Act.17 The guiding principle is that the court will guide proceedings and instruct the parties both on factual and legal circumstances to allow parties to litigate in person. The small claims procedure is only available for claims with an economic value equal to or less than 50,000 Danish kroner. Appeal of a judgment of 20,000 Danish kroner or less requires permission from the Appeals Permission Board.
iii Class actions
In 2008, provisions on class actions were included in the Administration of Justice Act. The provisions allow similar claims to be filed with the Danish courts as a class action on behalf of a group of people or legal entities.18 As a main rule, plaintiffs must affirmatively opt in to join the class action. To ensure an effective opt-in scheme, the Danish courts publish an inventory list of class actions on their official website. Opt-out class actions are possible under certain circumstances.19
Class actions are brought before the courts. No special court or tribunal deals with class actions. Case law is scarce, but recent decisions suggest that the degree of similarity of the cases and whether the class action process is the best method for resolution are determinative as regards whether class actions are allowed.20
iv Representation in proceedings
When acting as parties, natural persons have procedural capacity and are competent to represent themselves in court,21 and legal persons may be represented by employees. Otherwise, generally only Danish-qualified lawyers may represent parties in court. The court may order a party to retain a lawyer if, given the circumstances of the case, it considers that professional representation is required.22
v Service out of the jurisdiction
For service of documents within the European Union, EU Regulation No. 1393/2007 applies. The Regulation provides that Danish courts may forward an application directly to the competent authority in the Member State where service is required.
For service of documents within the Nordic countries, the Nordic Convention on Mutual Legal Assistance in Service and Taking of Evidence of 1974 applies.23 Pursuant to Article 1 of the Convention, a contracting state may apply directly to the relevant authority in the Nordic state for the service of documents and the taking of evidence.
Denmark has also ratified the Hague Convention of 15 November 1965, on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, and this Convention applies between Denmark and the signatory states.
vi Enforcement of foreign judgments
For a foreign court judgment to be enforced in Denmark, a treaty on enforcement between Denmark and the foreign state is normally required.
Where a judgment has been issued by a court of a state in respect of the recast Brussels Regulation24 or where the Lugano Convention applies, the judgment will be enforceable in Denmark.
The Hague Convention of 30 June 2005, on Choice of Court Agreements, entered into force on 1 September 2018. Among other provisions, the Convention states, subject to various exclusions and grounds, that a judgment of a contracting state designated in an exclusive choice of court agreement shall be enforceable in other contracting states.
Judgments from states with which Denmark has concluded no treaties are, as a matter of principle, not enforceable in Denmark. Scholarly writings have discussed whether Danish law under certain criteria allows for recognition of foreign judgments, even if Denmark is not bound by a treaty obligation, but case law is scarce.
vii Assistance to foreign courts
EU Regulation No. 1206/2001 on cooperation within the European Union on the taking of evidence does not apply to Denmark.
As noted, Denmark is party to the Nordic Convention on Mutual Legal Assistance in Service and Taking of Evidence. This Convention is based on direct contact, and a request for legal assistance is submitted directly to the relevant authority.
The Hague Convention of 18 March 1970, on the Taking of Evidence Abroad in Civil or Commercial Matters, governs Denmark's assistance to foreign courts of signatory states in taking evidence.
viii Access to court files
The main rule is that court hearings and court files are open to the public. Certain information such as trade secrets may, however, be kept secret.
ix Litigation funding
Litigants generally fund their litigation by themselves or by means of insurance. However, public aid to civil proceedings may be granted to parties with low personal and capital income or under certain other conditions. If a person is granted public aid by the state, the person does not pay court fees, is reimbursed for expenses relating to the case and is exempted from paying the counterparty's costs. The use of third-party funding is growing in Denmark but is by no means common.
i Conflicts of interest and Chinese walls
Conflicts of interest are managed within the framework of the Danish Bar and Law Society. The overriding principle is that any member of the Danish Bar and Law Society should be independent and not represent conflicting interests. Chinese walls are not accepted.
ii Money laundering, proceeds of crime and funds related to terrorism
The current Act on Measures against Money Laundering25 implements parts of the fourth and fifth EU Directives regarding the prevention of the use of the financial system for the purposes of money laundering or terrorist financing.26
Under the Act, lawyers are under an obligation to confirm the identity of new clients and conduct client due diligence checks before taking on a matter within certain practice areas. Matters such as disputes are generally excluded from these obligations. Members of the Danish Bar and Law Society are under an obligation to notify the Public Prosecutor for Special Economic Crimes of any suspected money laundering.
iii Data protection
On 25 May 2018, the EU General Data Protection Regulation (GDPR)27 came into force, harmonising data protection rules across the European Union, tightening processing rules and increasing sanctions. The Danish Data Protection Act28 also came into force, supplementing the GDPR's effect in Denmark in areas such as criminal convictions and national identification.
Documents and the protection of privilege
The relationship between a qualified lawyer and his or her client is privileged;29 correspondence and other documents on the lawyer's file may not be subject to disclosure and lawyers may (with minor exceptions) refuse to testify on issues relating to the client–lawyer relationship.30
ii Production of documents
At the request of a party, the court may order another party to produce certain documents. The party seeking production shall identify the documents with reasonable specificity and explain what the documents are intended to prove. Certain categories of documents may also be requested.
The parties are not obliged by law to disclose the requested documents. However, if a party fails to produce the documents requested, the court may draw adverse inferences.
Alternatives to litigation
i Overview of alternatives to litigation
Disputes are generally settled by the Danish courts. Although the courts remain the standard forum in relation to commercial disputes, arbitration is regularly used. Further, as part of the general reform of the Danish courts, the courts offer mediation.
The Danish Arbitration Act is based on the UNCITRAL Model Law of 1985, and applies to national and international arbitration proceedings taking place in Denmark.31
The overriding principle of the Arbitration Act is party autonomy. The control of the dispute lies with the parties, and they may to a large extent agree on how the arbitration is conducted. Consequently, the majority of the rules are non-mandatory.
Denmark is a contracting state to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, and arbitral awards are therefore recognised as binding and enforceable, and a valid arbitration agreement will normally deprive the courts of their jurisdiction. However, the Danish courts can refuse to recognise and enforce an award in specific circumstances.32 In a judgment rendered by the Supreme Court in 2016, it was held that an arbitral award may only be set aside in extraordinary circumstances; for example, if the arbitral tribunal has committed such extraordinarily serious mistakes that the arbitral award is manifestly incompatible with the domestic legal system (i.e., public policy).33
Arbitration proceedings commence when the respondent receives the written request for the dispute to be referred to arbitration, unless the parties agree otherwise.34 Generally, this request includes a summary of the dispute, a preliminary statement of the relief sought and, if three arbitrators, appointment of an arbitrator. The respondent will then generally submit a reply and, if three arbitrators, also appoint one arbitrator. The arbitration is normally concluded after an oral hearing.
In 2008, rules on court-based mediation were introduced in the Administration of Justice Act.37 The parties to a civil dispute are, as a matter of routine, given the option to attempt mediation within the court system before starting litigation proceedings. The court-based mediation scheme in Denmark is voluntary where both parties have to agree to mediation. The mediator is appointed by the court and is normally a judge or lawyer with specialist training in mediation.
Mediation is popular as an alternative dispute resolution (ADR) method. It is prevalent in family-related and probate matters, such as divorce, paternity, child support and child custody. In addition, in relation to large commercial matters, it is common to have a multi-tier clause referring a matter to mediation before the case goes to arbitration.
Outlook and conclusions
The courts shut down for a period during 2020 owing to the covid-19 pandemic, and many restrictions were imposed once the courts reopened. The Danish courts are still dealing with a backlog of cases while prioritising the most critical cases.
The backlog of cases for the Supreme Court has been further affected by the impeachment of the former Minister for Immigration and Integration. The former Minister was found guilty of illegally instructing the immigration authorities to separate asylum couples – without exception – in cases where one of the spouses was under 18. The former Minister has been sentenced to 60 days in jail.
The pandemic has also given rise to a mink commission. During the pandemic, the parliament gave the government wide authority to act quickly and without approval from the parliament given the state of emergency.38 One of the actions made by the government was to have the mink population put down owing to the rapid spread of coronavirus among the animals. Soon afterwards, the government stated that the legal basis for this decision was lacking, and the parliament decided to appoint a commission to investigate the course of events, including the relevant authorities' and ministers' actions and involvement in the decision and execution of putting down the mink. The commission is currently fulfilling its mandate, and a statement is expected to be released in 2022.
As regards the legal profession, the Danish Competition Authority earlier in the year presented 16 recommendations regarding the profession that aim to encourage competition in the industry and open up the 15 billion Danish kroner legal market. The Minister of Justice has at the moment decided to implement four of the recommendations, which concern, for example, greater fee transparency for legal services and adjustment of how bankruptcy trustees are appointed. The parliament has also passed a new act regarding court fees, which came into force on 1 October 2021 and which simplifies the calculation method.39 The new method is based on fixed rates rather than percentages; an example is the 1,500 Danish kroner case filing fee for a civil matter worth more than 100,000 Danish kroner.
Finally, Denmark – for the sixth consecutive year – is ranked number one in the World Justice Project's 'Rule of Law Index' 2021.
1 Jacob Skude Rasmussen is a partner and Andrew Poole is a dispute resolution consultant at Gorrissen Federspiel. The authors acknowledge the valuable assistance of assistant attorney Frederik Overgaard Hansen in producing this chapter.
2 Act No. 1851 of 20 September 2021.
3 Act No. 433 of 22 April 2014 (Public Administration Act) and Act No. 145 of 24 February 2020 (Public Records Act).
4 The Edinburgh Agreement was entered into on 12 December 1992 by the European Council. The Edinburgh Agreement, inter alia, included the four opt-outs from EU cooperation requested by Denmark in its memorandum 'Denmark in Europe' of 30 October 1992. See Part B of the Edinburgh Agreement.
5 Act No. 553 of 24 June 2005.
6 Judgment of 9 September 2021, Supreme Court, U.2021.4943.H.
7 Regulation (EU) No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
8 Decision of 11 October 2021, Supreme Court, U.2022.59.
9 Decision of 14 July 2021, Supreme Court, U.2021.4115.H.
10 Judgment of 16 February 2021, Supreme Court, U.2021.2133.H.
11 Act No. 1835 of 15 September 2021.
12 See Section 297 of the Administration of Justice Act.
14 See Section 321(1) of the Administration of Justice Act.
15 See Section 348(2) of the Administration of Justice Act.
16 See Section 356(1) of the Administration of Justice Act.
17 See Chapter 39 of the Administration of Justice Act.
18 See Chapter 23a of the Administration of Justice Act.
19 See Section 254e(8) of the Administration of Justice Act.
20 See decision of 12 August 2015, Eastern High Court, U.2016.104.Ø and decision of 12 June 2018, Eastern High Court, U.2018.3361.Ø, which have both denied class actions, and for a contrary decision see decision of 9 February 2018, Eastern High Court, U.2019.962.Ø.
21 See Section 259(1) of the Administration of Justice Act.
22 See Section 259(2) of the Administration of Justice Act.
23 The Nordic Convention was ratified on 26 April 1974 by Executive Order No. 100 of 15 September 1975.
24 Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
25 Act No. 1062 of 19 May 2021.
26 Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 and Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018.
27 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016.
28 Act No. 502 of 23 May 2018.
29 See Section 170 of the Administration of Justice Act and Section 5.1 of the Danish Bar and Law Society's Legal Ethics Rules. Since 1 July 2018, European patent attorneys also benefit from client–lawyer privilege before the Danish courts.
30 See Section 170 of the Administration of Justice Act and the decision above, U.2021.4115.H.
31 See Section 1 of the Arbitration Act.
32 See Section 39(1) of the Arbitration Act and decision of 27 June 2018, Eastern High Court, U 2018.3405.Ø where an arbitral award from the International Commercial Arbitration Court at the Chamber of Commerce of the Russian Federation was rendered unenforceable under Section 39(1)(d) of the Danish Arbitration Act on the basis that the claimant had initiated proceedings in Russia instead of Denmark, the latter being the seat as provided in the arbitration agreement.
33 Judgment of 28 January 2016, Supreme Court, U.2016.1558/2.H. The 2016 judgment and its ruling on extraordinary circumstances have been mentioned in later cases, for instance in the judgment of 30 June 2017, Western High Court, U.2017.3124.V and the judgment of 3 July 2020, Eastern High Court, U.2020.3312.Ø.
34 See Section 21 of the Arbitration Act.
37 See Chapter 27 of the Administration of Justice Act.
38 See Act No. 208 of 17 March 2021 (regarding amendment of Act No. 1026 of 1 October 2019 (with later amendments) on measures against infectious and other transmittable diseases).
39 Act No. 425 of 16 March 2021.