Arbitration cases

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 general public, journalists and other interested parties are not allowed to attend arbitration case hearings or to receive information about cases in any other way, unless the parties involved agree. Awards will only be publicised with the consent of the parties to the case.

Composition of the arbitral tribunal
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). In cases conducted in accordance with the 2010 rules, the parties are typically consulted about the technical arbitrators. They are consulted about the arbitral tribunal as a whole in cases conducted in accordance with the 2018 rules.

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 an 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 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.

By way of exception, an arbitral tribunal composed of three legal arbitrators or two legal arbitrators and one technical arbitrator may be appointed. This is tantamount to a tribunal with five arbitrators in which it has been decided to omit two arbitrators. Such an arrangement requires the consent of the parties and, in the case of non-acceptance by any parties who are later joined in the proceedings, the two members thus deselected must be included in the arbitral tribunal.

Unlike other types of arbitration, the parties to the case do not 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 following consultation.

In all cases the arbitrators are vetted to ensure that they are impartial and independent.

The Arbitration Board has adopted its own rules of procedure for the management of cases. The rules can be downloaded from this website. In addition, arbitral tribunals must comply with Danish legislation, including the 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 or by the provisions of the Danish Access to Public Administration Files Act or the Danish Public Administration Act.

Rules

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.

A memorandum of 21 December 2016 on practices related to expert appraisal, technical arbitrators and the setting of dates for proceedings is available.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 at the Arbitration Board. 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.

The process may begin with a telephone conference between the presiding arbitrator and the legal counsels of the parties to the case. During this conference call, deadlines for the submission of pleadings and a possible timeline for the hearing of the case are discussed. Telephone conferences are held regularly to discuss unresolved issues.

If one of the parties request 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 arbitral tribunal may express a verbal advisory opinion in connection with the case hearing. If a written award is requested, it must in principle 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 Practical information tab.