DENMARK: An Introduction to Dispute Resolution

1. THE DANISH LEGAL SYSTEM – INTRODUCTION 

Under the Danish legal system, the decisions of the Danish courts are based on the claims and arguments made by the plaintiff(s)/claimant(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, two High Courts (the Eastern and Western High Court) 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 alternative dispute resolution, e.g. mediation, are also employed.

Arbitration in Denmark is mainly solved through two institutes, the DIA (The Danish Arbitration Institute) and the Arbitration Board (the Danish Building and Construction Arbitration Board). While the Arbitration Board is focused on dispute resolution in the field of building and construction, the DIA offers dispute resolution in multiple national fields as well as in international arbitration cases. The proceedings at the DIA are regulated by the DIA’s Rules of Arbitration, which were recently renewed in April 2021.

2. THE DIA’S REVISED RULES ON ARBITRATION 

The DIA’s renewal of its arbitration rules included to further digitalise and make procedures more efficient and flexible. For example, the new DIA rules establish written communication to be electronic. Moreover, the DIA rules now provide explicit authority to restructure oral hearings to take place virtually. This revision seems particularly inspired by the COVID-19 pandemic and the restrictions it has caused.

Additionally, the DIA has increased its focus on ensuring transparency and impartiality. For instance, the involved parties are now obliged to disclose if they are receiving third-party funding of any costs and if the third party has an economic interest in the outcome of the case. This addition anticipates a trend of an increased use of litigation funds in arbitration cases in Denmark.

As another change, it now follows from the DIA rules that – when the parties have not agreed otherwise – the statement of claim shall be submitted in the language that is used in the parties’ arbitration agreement. This is particularly relevant when an arbitration agreement is made between one or more international (non-Danish) party as such agreements typically will be made in the parties’ common language, which in most cases is English.

3. DENMARK HAS RECENTLY BEEN RANKED THE HIGHEST IN THE WORLD JUSTICE PROJECT

Denmark has in 2021 been ranked the highest on the index of rule of law by the World Justice Project. The World Justice Project Rule of Law Index measures how the rule of law is present throughout the 139 participating countries. The survey was published on 14 October 2021.

In line with trends during previous years, the Nordic countries all fall high on the index. Specifically, Denmark has been ranked 1st out of 139 countries regarding civil justice, which measures how citizens can effectively resolve their disputes through the civil court system. The index further measures whether the legal measures are affordable, accessible and free of discrimination, improper influence by public officials and corruption. Interestingly, the index additionally measures the alternative dispute resolution mechanisms, where Denmark again ranks at the top.

4. THE DIGITALISATION OF THE DANISH COURT SYSTEM

In the last couple of years, the Danish courts have implemented the digital platform “minretssag.dk”, which functions as the official forum for contact and exchange of documents between parties and the court. The information on the platform is only available to those involved in the case and is thus not publicly available. A benefit of the platform has been the increased accessibility in the civil court system. This is namely because the parties also have access to the platform and thus to all information being passed between counsels and the court. Moreover, “minretssag.dk” is also accessible outside of normal business hours, meaning that exchanges can be made, and pleadings can be submitted, at any time during the day.

For many years, the only database that has provided access to Danish case law requires a paid subscription. In response to the lack of a free and publicly available database of Danish case law, the Danish Parliament has passed a new initiative to create such a database. The database has been delayed a couple of times due to the complexity of the project but is expected to launch by the end of 2021. The goal is to provide a catalogue of civil cases and selected criminal cases of importance to the public.

Since the Danish Supreme Court and the Maritime and Commercial Court already provide digitalised access to their judgements, it is to be expected that these judgements will be among the first published on the new database. Over time, the database will also contain judgements from the district courts, which are the first instance courts in the Danish legal system.

To begin with, only judgements made after the launch of the database will be included. No information has currently been released on whether the database will be available globally or only to Danish citizens.

The Danish Finance Committee has on 28 October 2021 joined the initiative to develop a new IT system to further digitalise the management of criminal and probate cases. The online platform is meant to streamline the smaller criminal cases, such as cases related to fines, of which there were approximately 155,000 cases in 2020, and probate cases which made up 78,000 cases in the District Courts and the Danish Maritime Courts in 2020 combined.

The project is expected to be one of the largest digitalisation projects for the Danish court system. The project is in its initial phases and is expected to be fully implemented by late 2026. The plan is to launch the project in six smaller parts throughout the next couple of years before the deadline in 2026.

5. COVID-19 AND THE IMPACT ON THE DANISH COURTS 

The Danish courts suffered the greatest impact from COVID-19 when Denmark initiated a lock-down in March 2020. The restrictions placed on Denmark during the lock-down forced the courts to default to emergency procedures, which among other measures included sending non-essential staff home. In the following months of the lock-down, the courts determined which cases were crucial enough to continue with physical attendance throughout the lock-down on a case-by-case basis. The selected cases were still subject to restrictions such as proximity guidelines and a limit on the number of participants. Despite the effort to continue the crucial cases, most ongoing and upcoming cases requiring physical attendance, such as an oral hearing, were postponed until the courts reopened.

Throughout 2021 (at least thus far), meetings with physical attendance by judges, counsels, witnesses etc, were carried out at the courts. Overall, in respect to civil court cases the COVID-19 situation has resulted in an increase of a couple of months in terms of average time in the courts’ case management. One factor that helped in decreasing the impact of COVID-19 on the Danish court system is that the vast majority of the preparatory steps of a court case can be done remotely as they are handled digitally, such as via conference calls and the abovementioned digital platform “minretssag.dk”.