Standard contracts in the field of building and construction stipulate that disputes are in principle to be settled by arbitral 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 situation in construction cases involving a client, several contractors, subcontractors and consultants. In arbitral proceedings it is possible to bring all parties together in one case and to settle all disputes together.
The Arbitration Board must handle cases in confidentiality according to the rules. During an arbitration case, the public, journalists, and other interested parties do not have access to the meeting room or any other information about the case, unless the parties to the case agree to it. The decision is only published if the parties allow it.
The arbitral tribunal
Unlike other arbitration, it is not the parties themselves who choose the judges. However, the parties can make suggestions regarding the profile and competence, and the appointment is made after consultation with the parties. I sager efter 2010-regelsættet høres parterne efter praksis over forslag til faglige dommere, mens høringen sker for hele voldgiftsretten i sager efter 2018-regelsættet.
The legal judges are appointed by the chairman of the Presidium, while the technical judges are appointed by the Arbitration Board.
In all cases the arbitrators are vetted to ensure that they are impartial and independent.
Arbitral tribunal with three arbitrators
The default is that the arbitration tribunal consists of three arbitrators, namely a legal arbitrator as the chairman and two technical judges with expertise in the area relevant to the dispute. This could be, for example, a building constructor and a consulting engineer, or an architect and a carpenter. The legal arbitrator is appointed by the chairman of the Presidium, while the technical arbitrators are appointed by the Arbitration Board, which in practice is the secretariat of the Arbitration Board.
Arbitral tribunal with one arbitrator
The parties to a case may also request hearing of a case by one arbitrator only.Depending on the nature of the dispute, the arbitrator will either be a legal arbitrator or a technical arbitrator. The Arbitration Board has the authority to appoint the technical arbitrator, while the Chairman of the Presidium has the authority if the arbitral tribunal is to consist of a legal arbitrator. Cases with a single arbitrator are often used in disputes with a subject matter under 1 million DKK or where the dispute is more technical and not of a principled nature.
If only one technical arbitrator is used, they will be able to seek legal assistance from the lawyers in the Arbitration Board's secretariat or from the chairperson of the Presidium. A lawyer from the secretariat will always be present when the case is heard.
Arbitral tribunal with five arbitrators
A party to a case may also ask for an arbitral 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. Arbitral tribunals with five arbitrators will generally only be appointed in cases involving very large amounts and/or matters of principle.
Other compositions
Exceptionally, upon request, an arbitral tribunal may be appointed with three legal arbitrators or two legal arbitrators and one techincal arbitrator, meaning the establishment of a five-member tribunal with the exclusion of two arbitral arbitrators. Such an arrangement requires the agreement of the parties, and if future cited parties do not accept, the two excluded members will be added to the arbitral tribunal. In the case of simplified arbitration proceedings, only two arbitrators can be appointed.
Rules of procedure
The Arbitration Board has adopted procedural rules for the handling of cases, which can be downloaded from this page. The arbitral tribunals must, in their handling of the case, also respect Danish Arbitration Act.
The arbitral 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 by the provisions of the Danish Access to Public Administration Files Act or Danish Public Administration Act.
Practice for protocols and awards
Once the case has been deliberated, a protocol or award is drafted. The protocol or award is sent to the parties involved in the case, as well as any third parties who have been notified of the proceedings. Additionally, the arbitration tribunal and any appointed experts in the case receive a copy.
When a full award is issued in a case with three or five arbitrators, the parties will be asked whether the award may be published in anonymized form in *"Decisions on Real Estate"* (KfE) and *"Journal of Housing and Construction Law"* (T:BB).
The processing time for an arbitration case at the Arbitration Board typically lasts between 6 months and 2 years.
Exchange of documents
The Board fixes deadlines for the parties’ written submissions on an ongoing basis. The parties usually have four weeks to prepare each submission. Because of their complexity or other constraints some cases will require that the exchange of documents between the parties take longer and consequently will not be able to meet the general requirement of four weeks
Telephone conference
The process can be initiated with a phone meeting between the chairman of the arbitration tribunal and the parties' lawyers. During the phone meeting, deadlines for written correspondence are set, and a possible timeline for the main hearing may be discussed. Ongoing phone meetings are held to discuss any outstanding issues.
Expert appraisal
If one of the parties requests an expert assessment during the case, this must be completed before the main hearing. Such a process will extend the duration of the case.
Hearing
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. Berammelsestiden er afhængig af det for parterne praktisk mulige – men typisk 2-4 måneder.
The arbitral tribunal may, after discussions with the parties, provide an oral indication during the main hearing. If the parties request an actual award, it will, as a general rule, be available no later than 4 weeks after the main hearing.
The standard agreements in this field include AB92, AB18, ABT 93, ABT18, ABR89, ABR18 and AB Consumer. More information about these documents can be found under the ‘Case types’ tab. The Arbitration Board has adopted its own rules for arbitration in the field of building and construction. Cases brought before the Arbitration Board before 1 January 2011 are processed in accordance with the Arbitration Board rules on arbitration from 2006. Cases brought before the Arbitration Board after 1 January 2011 are processed in accordance with the Arbitration Board rules on arbitration from 2010, while cases referred to the Board in accordance with the AB18 standard document are processed in accordance with the Arbitration Board rules on arbitration from 2018.
The procedures mentioned in the Arbitration Board rules are applied in the consideration of cases, and the parties cannot agree on different procedures without the approval of the arbitral tribunal.
The rules are also available in English (see the tab in English). Cases may be conducted in English if the parties so wish.
Arbitration cases are filed as C-cases.
There is a practice note from January 24, 2024, regarding expert assessments.
