COVID-19 and its impact on Danish courts
1. THE DANISH LEGAL SYSTEM
Under the Danish legal system, the decisions of the Danish courts are based on the claims and arguments made by the plaintiff(s) and defendant(s) as well as the evidence presented to the court by these parties. The three levels of the courts in the Danish legal system are represented by the district courts, the two High Courts and the Supreme Court.
In addition, resolving legal disputes before a tribunal outside of the State-established court system, i.e. arbitration, is recognised and practised in Denmark. Other methods of dispute resolution, e.g. mediation, are also employed. However, the developments elaborated below pertain to dispute resolution before the Danish courts.
2. COVID-19 AND ITS IMPACT ON DANISH COURTS
COVID-19 has so far had its greatest impact on the Danish legal system in spring 2020 during the first wave, when Denmark experienced the extensive shutdown of various institutions. In spring 2020 hearings and other meetings that required physical attendance were rescheduled. As of fall 2020, we are currently seeing a second wave; however, the legal institutions are functioning, albeit with some restrictions of social distancing, etc.
The shutdown of the national courts, which resulted in the postponement of scheduled hearings, has certainly increased the pressure on the courts. Both the Danish Court Administration and the courts have worked dedicatedly to minimise cases piling up due to the COVID-19 outbreak. Moreover, at the Danish courts many parts of the proceedings of civil cases are completed digitally, which has contributed to minimising the impact of COVID-19 on dispute resolution in Denmark.
3. DIGITALISATIONS OF DANISH COURTS
At the Danish national courts, civil cases are being brought and processed digitally on the internet-based platform minretssag.dk. This means that the cases no longer exist on “paper” at the local court as previously.
However, there is a general lack of a free and public available database of judgments. This has previously been the subject of discussion in Denmark. However, an agreement has been entered into between the Danish Court Administration and a private company for the development of a database containing the judgments of the Danish courts. The database is expected to be available during the first half of 2021. The overall purpose of the database is to make certain that judgments of public interest in both civil and criminal cases are publicly available.
4. NEED FOR ALTERNATIVE METHODS WITHIN DISPUTE RESOLUTION UNDER COVID-19
The outbreak of COVID-19 has resulted in an increased need for new and non-traditional methods to resolve disputes. For instance, it has become increasingly relevant to consider the use of virtual courtrooms and virtual hearings. Overall, COVID-19 has increased the interest in digital solutions to conduct litigation proceedings.
The principal rule is that court hearings are public and physical in Denmark. The principal rule ensures that the public has the right to attend court hearings - however, if the court hearings are virtual, the access may be non-existent. Thus, the hearings at the court are conducted in-person.
For witness testimonies, the main rule for the form of presentation of the witness evidence to the courts follows from Section 174(1) of the Danish Administration of Justice Act. It follows from the section that testimonies must be given before the court where the case is being conducted. Nevertheless, Section 174(2) of the Danish Administration of Justice Act states that “the court may direct that a witness is to give evidence by use of video communication equipment, if deemed appropriate and adequate”. Thus, the use of videoconferencing for witness testimonies is possible to be used at the Danish courts. It is still to be seen if the virtual testimonies match the physical presence of the witness.
Furthermore, it follows from Section 192(6) of the Danish Administration of Justice Act that a witness abroad can be allowed to give a testimony by video, if it is considered that his/her evidence may be given in a secure manner. This makes the use of videoconferencing for witness testimonies increasingly available for foreign witnesses not residing in Denmark that are subject to travel restrictions.
5. ARBITRATION PROCEEDINGS UNDER COVID-19
Arbitration cases seated in Denmark have been affected by COVID-19. In particular, main hearings have been rescheduled, where possible. However, arbitral proceedings have generally been able to continue with the preparatory phases of the proceedings as large parts of these phases can be handled digitally.
For arbitral proceedings under Danish law, it is the general rule and practice that oral hearings shall be held physically. However, the parties of the arbitration are free to agree that hearings should be conducted virtually.
It is seen to become practice in international arbitration that hearings are held virtually. For instance, ICC issued a COVID-19 guidance on 9 April 2020 where hearings in light of COVID-19 considerations can be conducted by audioconference, videoconference, or other similar means of communication.
It has recently been decided by a tribunal in an international arbitration case conducted through the Danish Institute of Arbitration that the scheduled hearings are to be held virtually - even though this was objected to by one of the parties. Due to the current, unprecedented times with COVID-19, the tribunal held that the arbitral tribunal itself and the parties should be flexible, in particular regarding hearings. The tribunal found several benefits from virtual hearings over in-person hearings, inter alia, the risk of postponement was less, the hearings of witnesses and experts were possible virtually, and finally that the health risks for all participants of the hearing would be too great if the hearing were conducted in-person. The tribunal found that the decision did not impact the Parties' right for an opportunity to fully present their cases and the principle of party equality, however the tribunal shared the Parties' common opinion that an in-person hearing is generally preferable and should be the first choice. It remains to be seen whether the virtual hearing will be conducted in an appropriate and adequate manner and if it is comparable to an in-person hearing.