Arbitration cases

Standard contracts in the field of building and construction generally stipulate that disputes are to be settled by arbitration tribunals under the auspices of the Arbitration Board. Such tribunals will be set up for each individual case. If such an approach has not been agreed in advance, the parties may agree to settle a dispute by arbitration once it has arisen. Special rules apply to consumer cases.

Opting for arbitration is often a good idea if many parties are involved in a case, including parties adjoined as third parties, which is often the case in construction cases involving a client, several contractors, subcontractors and consultants. In arbitration proceedings it is possible to bring all parties together in one case and to settle all disputes together.

An arbitration tribunal is generally composed of three arbitrators: a legal arbitrator who is the presiding arbitrator and two technical arbitrators with expertise in the field the case concerns. The technical arbitrators may, for example, be a construction designer and a consulting engineer or an architect and a master carpenter. The legal arbitrator is appointed by the chair of the Presidium, and the technical arbitrators are appointed by the Arbitration Board (in practice, the appointments are made by the Secretariat of the Arbitration Board).

The parties to a case may also request hearing of a case by one arbitrator only. Depending on the nature of the dispute to be resolved, such arbitrator will be either a legal or a technical arbitrator. The Arbitration Board is authorised to appoint technical arbitrators, but the authority to appoint legal arbitrators is vested in the chair of the Presidium. Cases concerning claims below DKK 500,000 or cases of a more technical nature that do not concern general principles are often heard by one arbitrator only. If a single technical arbitrator is used, he or she will be able to seek legal advice from the lawyers in the Secretariat of the Arbitration Board or from the chair of the Presidium. One of the Secretariat’s lawyers will always be present during the hearing of a case.

A party to a case may also ask for an arbitration tribunal composed of five arbitrators: three legal arbitrators and two technical arbitrators. In practice, the presiding arbitrator will always be one of the three members of the Presidium. Arbitration tribunals with five arbitrators will generally only be set up in leading cases involving very large amounts.

Unlike other types of arbitration, the parties do no propose or select arbitrators themselves. The legal arbitrators are appointed by the chair of the Presidium, and the technical arbitrators are appointed by the Arbitration Board. In all cases, the arbitrators are vetted to ensure that they are independent and impartial.

The Arbitration Board has adopted its own rules of procedure for the management of cases. The rules can be downloaded at this website. In addition, arbitration tribunals must comply with Danish legislation, including the Danish Arbitration Act, when hearing cases.

The arbitration tribunals basically apply the same standards for the hearing of cases as the ordinary courts of law and public administrative authorities, but they are not bound by the rules of procedure set out in the Danish Administration of Justice Act or by the provisions of the Danish Access to Public Administration Files Act or the Danish Public Administration Act.

Newspaper reporters and other interested parties are not allowed to attend arbitration case hearings or to receive information about cases unless all parties involved agree to this. Awards will only be publicised with the consent of the parties to the case.

Rules

The standard agreement documents in the field of building and construction are AB 92, ABT 93 and ABR 89. The Arbitration Board adopted rules for its hearing of building and construction arbitration cases in 2010. Cases filed with the Arbitration Board before 1 January 2011 are managed in accordance with the board’s 2006 rules for arbitration cases.

Arbitration cases are referred to as C cases.
AB 92 English
ABT 93 English
ABR 89 English
Arbitration Rules at the Arbitration Board 2010
Information sheet on Arbitration Rules 2007

 

Duration of cases

It generally takes between six and eighteen months to finalise an arbitration case in the Arbitration Board. The parties usually have one month to prepare each pleading. For various reasons some cases may take longer.

The process typically begins with a telephone conference between the presiding arbitrator and the legal counsels of the parties to the case. During this conference call, a time schedule is prepared and a timeline for the hearing of the case is discussed. Telephone conferences are held regularly to discuss unresolved issues.

If one of the parties requests expert appraisal in connection with the case, such appraisal must be concluded before the hearing of the case. The appraisal will therefore often prolong the time it takes to finalise the case.

After the exchange of pleadings and conclusion of any expert appraisal requested, a date for the hearing of the case must be fixed. All direct and adjoined parties as well as any witnesses called must be able to attend the hearing on that date. The delay between issuing of proceedings and the date of the hearing will depend on what is practically feasible. It will typically be between two and four months.

After discussions with the parties, the arbitration tribunal may express verbal advisory opinion in connection with the case hearing. If a written award is requested, it must be available within four weeks of the date of the hearing.

Further information about practical matters, including the management of documents, can be found under the tab Practical information.