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.