The Arbitration Board can, upon request, appoint an expert assessor to provide a professional and technical evaluation of specific identified defects and/or deficiencies in ongoing or completed work in the construction and civil engineering sector. It may have been agreed in advance that the Arbitration Board will handle the task – primarily using the AB system – or the parties may agree to use the Arbitration Board once the conflict has arisen. The use of the Arbitration Board thus requires the agreement of both parties.
An expert appraisal procedure may be commenced to secure evidence or to clarify various issues so that the parties can either find a solution to the problems themselves or perhaps decide to subsequently commence arbitral proceedings. Sometimes a need for expert appraisal arises during the hearing of an arbitral case.
If the Arbitration Board is used for this purpose, the rules and regulations of the board are applied. The provisions on expert appraisal set out in the Danish Administration of Justice Act thus do not apply, but the Arbitration Board applies criteria which to a great extent resemble those set out in the Act. This is reflected in practice and also, in cases subject to AB18, in the 2018 Expert Appraisal Rules.
The Arbitration Board's expert appraisers
In its selection of expert appraisers the Arbitration Board draws upon a long-standing network of competent professionals throughout Denmark, which is continuously maintained and developed. In addition, the Arbitration Board seeks new experts in specific professional areas of a relatively rare nature.
The Arbitration Board assesses on a case-by-case basis whether an expert assessor is suitable, with an emphasis on expertise and experience depending on the nature of the issue, while also taking into account, when possible, the geographical area. The Board investigates in specific cases whether there may be any issues with impartiality. The parties should indicate their preferences regarding the profile and/or qualifications. As a general rule, the parties will be consulted on proposals for expert assessors, but it is the Board that appoints the expert(s). The Board evaluates any objections concerning qualifications and impartiality before the appointment and may uphold the appointment if the objections are not substantiated.
It is possible for the parties to jointly propose a specific expert assessor, but even in this case, it is ultimately the Arbitration Board that appoints the expert assessor. The Board may also decide that the case should be handled by two or more expert assessors.
Scheduling of the expert appraisal
Once the expert appraiser has been appointed, he or she invites the parties to attend the actual appraisal. The parties may contact the expert appraiser directly in matters regarding dates, times, etc. The expert appraiser will endeavour to find a date that suits all parties involved but, if this proves difficult, the expert appraiser may give the parties a choice between two dates and will then decide on one of those two options as the actual time and date of the meeting.
Material for the expert appraiser
Information in the case, expert themes, and any attachments must be submitted to the Secretariat via the VBA Portal. The expert assessor will gain access to these materials either when the parties have reached an agreement on the matter or when the Arbitration Board, possibly with the assistance of a legal judge, has made a decision on whether questions can be asked and documents can be presented. The Arbitration Board assists with managing deadlines in accordance with the applicable rules and can make decisions in disputes related to expert assessments to move the cases forward. A dispute can also be decided by a legal judge if the parties agree, in which case it will occur for a fee, and the judge will make the decision instead of the Board. If expert assessment occurs in connection with an arbitration case, it will be the chairman of the arbitral tribunal who makes the decision as part of the overall handling of the case.
Submission of expert opinion report
Once the appraisal has been carried out, the expert prepares minutes, an expert opinion report, a progress report or a supplementary declaration. The Arbitration Board accepts the expert sending such reports or declarations direct to the parties provided a copy is sent to the Secretariat. In such a scenario the expert must have made sure that the deposit paid will cover the costs of the case. The parties should not expect to receive the expert report until the amount required has been deposited with the Secretariat. The reports or declarations may also be sent to the Secretariat, which will then forward them to the relevant parties.
Matters of urgency
A request for expert appraisal may state whether the appraisal should preferably be conducted as a matter of urgency. In connection with progress reports, bankruptcy, reconstruction, etc, expert appraisal may take place at very short notice, often with only one day’s notice. In such special circumstances the parties may be interested in securing evidence of conditions at a building or construction site. It will then be possible to resume work very quickly, and the parties will not later be in doubt as to the conditions at the time in question.
If the request does not concern a progress report, bankruptcy or suspension of payments, the Arbitration Board will assess and decide whether a motivated request for treating a case as a matter of urgency should be accommodated, including whether an inspection should be carried out, whereas disagreement concerning questions, etc will be resolved later. Unless otherwise decided, an expert appraiser will usually be allowed to see the questions asked, even if they are not the final questions. There may also be reasons why an expert appraiser is not allowed to see documents before a disagreement between the parties about this has been resolved.
The standard agreements are AB92, AB18, ABT93, ABT18, ABR89, ABR18, AB Abridged and ABR Abridged. The Arbitration Board has adopted its own rules on expert appraisal in relation to building and construction works. Cases brought before the Arbitration Board under AB92, AB18, ABT93 and ABR89 are considered in accordance with the ‘Rules for appointment of expert appraisers at the Danish Building and Construction Arbitration Board’ (VBA Expert Appraisal Rules 2008), while cases brought before the Board under AB18, ABT18, ABR18, AB Abridged and ABR Abridged will be considered in accordance with the 2018 Expert Appraisal Rules.
Requests for expert assessment and any relevant attachments must, as a general rule, be submitted to the Arbitration Board via the VBA Portal by creating a new case. However, documents in special formats must be submitted via USB, another portal solution, or by regular mail. In practice, the Board requires that expert themes be submitted in a document, and not, for example, as part of a longer email. Additionally, both the expert theme and attachments must be accurately labeled.
The Secretariat has some internal guidelines as to who can act as an expert appraiser under the auspices of the Arbitration Board and concerning appointment in specific cases; see below.
The guidelines below regarding expert assessments are, among other things, a result of the experiences from the many courses and meetings held by the Arbitration Board, as well as the numerous expert themes and expert reports that the Arbitration Board has processed and evaluated.
Expert appraisal cases in the Arbitration Board are referred to as A-cases, while cases in which the board proposes an expert for appraisal at the ordinary courts of law are referred to as B-cases.
There is a practice note on expert assessments at the Arbitration Board dated January 25, 2024.
Not only must the skills and competences of expert appraisers be excellent, it is also important that the processes are adequate. For that reason the Arbitration Board has prepared a checklist for expert appraisers as a supplement to the rules and guidelines otherwise used by expert appraisers.
The Arbitration Board proposes experts for participation in proceedings in the ordinary courts of law as set out in Part 19 of the Danish Administration of Justice Act. According to the provisions of the Administration of Justice Act, a court of law must agree to the appointment of an expert. The legal counsel of the party requesting expert appraisal must contact the Arbitration Board to obtain a proposal for an expert appraiser. The board does not have a specific set of rules in this respect, but the Arbitration Board Statutes include a description of such an assignment. The Arbitration Board Statutes
Materials and information for the Arbitration Board
Voldgiftsnævnet skal for at kunne tage stilling til sagen have en kort beskrivelse af sagen og et skønstema. Der er således som udgangspunkt ikke behov for at modtage alle sagens bilag. Hvis der måtte vise sig et behov, vil Voldgiftsnævnet rekvirere de yderligere oplysninger. Se
A request is made for an indication of preferences for the expert's profile and/or competencies.
VBA Portalen i B-sager
Voldgiftsnævnets dokumentportal skal anvendes i alle sager, hvilket betyder, at de dokumenter, som er uploadet i portalen, er tilgængelige for parter, advokater og skønsmænd. Portalen sikrer, at der er let og sikker adgang til sagens dokumenter, mens sagsbehandling og korrespondance fra nævnets side sker ved almindelig e-mailkorrespondance.
Hvis en part er repræsenteret ved advokat, er det alene advokaten (repræsentanten), der kan lægge evt. yderligere dokumenter i sagen, og som får notifikation om evt. nye dokumenter.
Hvis et skønstema, bilag eller processkrifter er placeret i en mappe, som skønsmanden ikke har adgang til, vil nævnet om nødvendigt flytte materialet til den rette mappe.
Hvis skønsmanden f.eks. ikke må se et skønstema eller bilag, skal nævnet oplyses herom, hvorefter det sikres, at materialet flyttes til en mappe, som skønsmanden ikke har adgang til. I så fald gennemgår nævnet alene temaerne med skønsmanden telefonisk på en mere overordnet måde.
Skønsmænd har i denne sagstype adgang til mapperne A, B, D, E og F i VBA Portalen, dvs. ”Processkrifter”, ”Bilag til Processkrifter”, ”Endelige skønstemaer og erklæringer”, ”Endelige bilag til syn og skøn” og ”Økonomi”. Mapperne A og B kan lukkes for skønsmanden.
Man opretter sig som bruger af portalen ved brug af e-mail og eget kodeord. Oprettelsen skal ske ved mobilnummer af hensyn til to-faktor godkendelse.
The Board proposes only one expert assessor per paid fee. Once the Board has proposed an expert assessor, no further action is taken by the Board. After this, contact is established between the lawyer and the expert assessor, ensuring that the expert has access to all the case documents. The expert will only be able to see what has been presented in the Board's case under the "completed cases" tab in the VBA Portal. The case handling then proceeds through the court and according to the rules of the Administration of Justice Act. This also means that the Arbitration Board does not assist with the process of obtaining a timeline and cost estimates from the proposed expert assessor.
The Arbitration Board does, however, provide advice to the expert upon request regarding any questions related to procedures and the role of the expert.
In case of objections to the proposed expert appraiser
Retten vil efter indsigelse fra (en af) parterne kunne afvise nævnets forslag, hvis den pågældende skønsmand ikke skønnes at have de rette kvalifikationer eller viser sig at være inhabil. I så fald stiller nævnet en ny skønsmand i forslag uden nyt gebyr. Det bemærkes, at der vil blive opkrævet nyt gebyr, hvis nævnet ikke er enig i indsigelser, der måtte komme direkte fra parterne uden rettens afgørelse.
Informing the expert appraiser
The proposed expert must be informed if the case is not advanced in relation to the expert, so that they can adjust accordingly. Only in cases where another expert is proposed will the Board inform the current expert that they will not be proceeding with the case.
VBA Portalen i afsluttede sager
Sagen kan ses under “Afsluttede” når forslag til skønsmand er fremsendt til parterne og dermed lukket af nævnet. Parterne skal selv sørge for, at skønsmanden får adgang til det fulde materiale ved de civile domstole enten ved fremsendelse eller på minretssag.dk.
