Construction 2024 Comparisons

In Denmark, there are no laws specifically governing the contractual relationship between an employer and a contractor. Instead, there are several standard contracts that have the status of agreed documents and on which virtually all large construction contracts are based, see 1.2 Standard Contracts. 

With regard to statutory requirements related to buildings and constructions, this is mainly governed in the Danish Building Act and the relevant ministerial orders. 

Furthermore, the Danish Contracts Act regulates, inter alia, when and how a contract is agreed and binding. It also contains certain principles of interpretation.

As mentioned in 1.1 Governing Law, large construction contracts are usually based on a suite of standard contracts governing the relationship between the employer-contractor, employer-designer, contractor-subcontractor and contractor-designer, called the AB Standards. However, the use of standard contracts is not mandatory.

Construction contracts in Denmark are rarely based on NEC3 or the like, due to the availability of the aforementioned standard documents, which are somewhat comparable to the standard documents used in other parts of Scandinavia (Sweden and Norway). The use of FIDIC contracts is significantly less than the use of the AB Standards. However, in particular sectors, namely large multinational contracts, contracts on renewable energy, and contracts on offshore works, FIDIC contracts are the predominant choice or advancing significantly.

The AB Standards

The Danish standard documents, the “AB Standards” are agreed documents, meaning that they have been prepared based on, inter alia, negotiations between opposing interest groups. A committee appointed by the Danish Minister for Climate, Energy and Building (and containing representatives from the interest groups) has formulated three standard contracts (the “AB Standards”) for use in construction in Denmark.

• AB 18 – General conditions for building and construction works and supplies (“AB 18”). AB 18 is used in the relationship between an employer and a contractor where, by and large, the contractor is responsible for the performance of the building and construction works, and the employer is responsible for the design.
• ABT 18 – General conditions for design-and-build contracts (“ABT 18”). ABT 18 is also used in the relationship between an employer and a contractor, but covers those situations where the contractor is responsible for the performance of the building and construction works as well as being responsible for the design.
• ABR 18 – General conditions for consultancy services for building and construction works (“ABR 18”). ABR 18 is used between an employer/contractor and a consultant. 

The AB Standards are sets of general conditions, setting out the parties’ contractual rights, obligations and responsibilities and are used alongside the parties’ construction contract, which is often brief, as well as the employer’s/contractor’s requirements, time schedule and other contractual documents. 

Though the AB Standards are, to some extent, a codification of generally applicable Danish legal principles, the AB Standards only apply if the parties have agreed thereto.

In Denmark, the entities acting as employers in construction projects vary greatly. Common entities are the Danish state, often represented by governmental authorities, bodies or agencies, regional authorities and municipalities, as well as co-operative housing societies. Similarly, the private sector plays a large role, and is responsible for around two-thirds of the total investments. 

Under a construction contract, the rights and obligations of the employer depend, of course, on the specific contract entered into. However, generally, during the contract conclusion period, the employer:

• calls for tenders based on tender material;
• obtains the necessary approvals for the construction;
• ensures design for the construction;
• takes out certain insurances; and
• provides security for payment to the contractor(s).

During the construction phase, the employer has a number of management and control obligations and rights towards the contractor, as detailed in the AB Standards. The primary, however, being to pay the contract sum for the contractor’s performance.

Companies that typically act as contractors may be divided into large construction groups, specialising in design-and-build contracts, and specialised contractors who focus on certain fields of construction and therefore often act as subcontractors to design-and-build contractors. 

Under a construction contract, the rights and obligations of the contractor depend on the specific contract entered into. However, generally, during the contract conclusion period, the contractor is responsible for the planning and execution of the works and has, unless otherwise agreed, freedom of choice as to how the works are to be performed (see 3. Works). Besides performing the works, a contractor must usually provide security (often a performance bond) for fulfilment of its duties towards the employer, take out liability insurance, deliver materials, prepare and update working schedules, etc.

Subcontractors are typically companies with specialist knowledge in a specific area; typical examples are the so-called technical (sub)contractors, specialising in areas such as ventilation, electricity, and plumbing and heating. 

Contractually speaking, a design-and-build contractor is – vis-à-vis its subcontractors – considered an employer in Denmark. The general rights and obligations of the subcontractors are therefore comparable with the rights and obligations of the contractor towards the employer.

Construction projects in Denmark are most commonly financed by private banks, pension funds and public entities. 

The financiers are not a party to the construction contract but have an independent contractual relationship with the relevant party. As such, the financiers have no direct rights or obligations under the construction contract, besides those following from guarantees issued by the financiers. 

Any control or rights would therefore have to be agreed upon in the contract between the financier and the debtor. As an example, the financier may have an interest in novating the construction contract if the employer goes bankrupt. Such right to novate an agreement must generally be agreed upon in advance under the construction contract between the employer and the contractor.

The consultancy industry has evolved over the past several years towards having large organisations, which can deliver within most or all areas of the design of a construction project, encompassing both architectural and technical consultancy. Additionally, there are other, typically larger, companies that focus more on individual services within the design of a construction project, whether it be architecture, engineering services, or other consultancy services. However, the industry still has a large number of small or medium-sized companies, which are specialised in particular design tasks, inter alia, due to the vast need for special knowledge on individual aspects of construction projects.

The rights and obligations of the designer are dependent on the specific construction contract. In a general sense, the designer is responsible for delivering a project, or a part of a project, which is buildable. The designer has a contractual relationship to either the employer or the contractor, based on who has the obligation to design the project.

Given the freedom of contract, the scope of work can be determined in any way the contractual parties agree. Essentially, the scope of work is determined by the employer in the tender documents, either in the form of certain functional requirements to be achieved or in the form of a more detailed set of specifications, depending on the type of contract. Such scope of work is subject to agreement (potentially after negotiations) with the contractor(s).

When the contract is concluded, the scope of work is (in theory) set, and any additional work or changes thereto may entail that the contractor is entitled to additional payment and time. 

Whereas the requirements regarding the work to be performed tend to be categorised as functional or performance requirements in design-and-build contracts (ABT 18), the requirements regarding the work tend to be more specified in other construction contracts (AB 18).

Employer’s Rights

In accordance with the AB Standards, the employer has a right to order variations to the works when such variations are naturally linked to the services agreed upon. 

An example of a variation could be that the contractor must supply a service in addition to, or instead of, the originally agreed service. However, a change in the nature, quality, type or execution of a service may also be considered a variation. 

The employer’s right to order variations is not unlimited. As stated above, it is a requirement that the variation is naturally linked to the services agreed. 

Rights of the Contractor

It is also worth noting that – to balance the contractor’s interest – the contractor has a right to carry out (and be paid for) variations demanded by the employer, unless the employer proves that there are special reasons for having another contractor perform the work. Such special reason may, inter alia, be that the contractor does not have the necessary technical knowledge to perform the variation or that the payment requested by the contractor is unreasonable. As such, the employer cannot simply engage a new contractor to perform work that is naturally linked to the works that the already-engaged contractor has performed on a project.

Determining the Price

With regards to determining the price of the variation, this depends on the specific AB Standard entered into, but pricing is commonly either done based on unit rates agreed in the contract or on an account basis. With regard to the latter, the contractor may claim what is reasonable, and it is up to the employer to prove that the claimed price is unreasonable.

Time-Related Costs

The contractor may claim time-related costs caused by a variation ordered by the employer. Conversely, if the variation order entails a cost saving compared to what was originally ordered, the employer may be entitled to a reduction in price.

The responsibilities regarding the design process between the employer, the designer, and the contractor depend on the parties’ agreement and may be construed with many nuances and hybrids. However, some general starting points can be discerned from the AB Standards. 

AB 18 – Contractor Only Carries Out the Building and Construction Work

If AB 18 is agreed, the employer and the contractor have – as a starting point – agreed that the contractor “only” carries out the building and construction works, and that the employer is responsible for the design (drawings, descriptions, etc). 

In such cases, the employer bears the full responsibility for the design, and the contractor is only to carry out design work if this has been agreed. 

With an AB 18 set-up, the employer will usually enter a contract with a designer/consultant to carry out the designs on behalf of the employer – such contract is usually based on an ABR 18, see 1.2 Standard Contracts. The designer/consultant will then be responsible for the design in the contractual relationship between the employer and the designer/consultant.

ABT 18 – Contractor Carries Out the Building and Construction Work and Design (Design and Build)

The employer and contractor can agree that the contractor carries out the building and construction works and supplies the design. ABT 18 is relevant for this type of agreement, see 1.2 Standard Contracts. 

In such cases, the contractor bears the full responsibility for the design in the relationship between the employer and the contractor. However, if the employer has proposed a specific type of design in the tender documents and the design is applied, then the contractor may not be responsible for this design. 

The contractor will, in such instances, often enter a contract with a designer/consultant to carry out the design (based on ABR 18), and the designer/consultant is therefore responsible for these designs in the relationship between the contractor and the designer/consultant.

The division of responsibilities in the construction process between the employer and the contractor(s) depends on which AB Standard has been agreed, namely AB 18 or ABT 18. 

To give an example, some of the employer’s and contractor’s main responsibilities during the construction process (after the design phase) in an AB 18 set-up may be described as the following.

Employer’s Responsibilities

The employer is responsible for:

• relations with the authorities, including achieving the necessary approvals, etc; 
• preparing the master programme;
• managing interfaces;
• appointing a supervisor to represent the employer in its relationship with the contractor;
• convening construction meetings with the contractor; and
• calling the parties to attend a pre-handover review of the works, as well as the actual handover meeting.

Contractor’s Responsibilities

The contractor(s) is responsible for the work performed, namely, that the work is performed in accordance with the contract (the design, possible requirements, etc), but also more generally that the work is done in accordance with good professional practice. If the work is not performed in accordance with the contract or good professional practice, that work is considered defective. 

The contractor is, as a starting point, also responsible for preparing a work schedule (based on the master programme), which states the sequence of the individual elements of the contractor’s work, including assessing compliance with this schedule on an ongoing basis. The contractor is further responsible for quality assurance of its services. 

The above-described division of responsibilities may, however, be amended as the parties see fit, and the possible division of work is therefore completely up to the parties concerned.

Information About Obstacles at the Construction Site

Regarding the status of the construction site, the tender document must include information about surveys and studies made concerning groundwater and soil conditions, pollution, pipes, cables, hazardous substances and materials, as well as any other obstacles. This follows from both AB 18 and ABT 18. Thus, the employer is responsible for inspecting the construction site, unless otherwise stated in the contract between the employer and the contractor.

If the contractor finds that the work cannot be performed in accordance with the contract due to obstacles, the contractor must notify the employer immediately and await instructions.

Public Enforcement Notices or Prohibitions

It is also worth noting that the authorities are entitled to issue public enforcement notices or prohibitions. This is the case if something at the construction site does not fulfil, for example, regulatory requirements for pollution, or if archaeological finds are discovered at the site. The employer bears the risk for such notices or prohibitions unless they have been issued as a result of the contractor’s actions.

Most construction projects require a building permit, which is issued by the local municipality upon the employer’s application, before the construction process begins. The permit is only given if the construction project is in accordance with Danish building regulations and the local development plan, if applicable. 

Upon completion of the construction project, the employer must apply for an occupancy permit before using the new building. The occupancy permit is given by the municipality after receiving all the relevant documents, including a declaration stating that the construction work has been carried out in accordance with the building permit and the building regulations. 

The building permit and the occupation permit are governed by mandatory law (Danish Building Act).

As of 2023, the majority of new heated buildings must at completion have a Life Cycle Assessment (LCA) stating the building’s yearly CO₂ emissions per square metre over a 50-year period in order to obtain an occupancy permit. Most heated buildings larger than 1,000 square metres must abide by the threshold limit value currently set at 12kg CO₂ equivalents per square metre per year, in order to obtain occupancy.

The contractor bears the risk of damage to, or loss of, works and materials until the work has been handed over to the employer – see 1.2 Standard Contracts, AB 18 and ABT 18.

Contractor’s Responsibilities

The contractor is, therefore, also responsible for maintenance of the works during the construction. While the contractor obviously has an interest in taking care of the works during the construction, it is essentially up to the contractor how this obligation is fulfilled.

Employer’s Responsibilities

When the work has been handed over, the employer is responsible for damage to and loss of works and materials, as well as maintenance. During the construction process, the employer is also responsible for damage to or loss of works if the damage or loss is due to circumstances relating to the employer. If the work or part thereof is taken into use before the handover, the employer is also responsible for any loss or damage to the work occurring thereafter.

Other functions in the construction process such as operation, finance or transfer are usually not instructed by the employer to the contractor or third parties. Exceptions do occur, however – for example, in large infrastructure projects.

Before providing a few notes on the tests for completion of works in Denmark, it is important to note that the relevant time for evaluating whether a work is defective is the time of handover. 

The quality of the works will therefore be assessed during the handover meeting, but actual tests are usually not part of the ordinary handover meeting. 

This must be viewed in light of the fact that construction contracts often include provisions requiring the contractor to perform certain quality assurance of the works, including the design, as well as provisions on samples or tests to be taken prior to handover. The result of such tests will therefore be part of the contractor’s quality assurance documentation, submitted to the employer on an ongoing basis prior to handover.

As a new rule in the AB Standards (revised in 2018), the parties must – prior to the actual handover of the works – conduct a pre-handover review. 

Pre-handover Review

The purpose of conducting a pre-handover review is to support a continuous inspection for defects and to align the parties’ expectations. 

Prior to handover of the works, the employer must summon the parties to attend a review of the works (all or sections thereof) in reasonable time before the agreed handover date. At the pre-handover review, the employer prepares a protocol stating all matters identified, and any remarks made by the contractor. If the identified matters are considered defects by the employer (and the contractor), the contractor will agree to rectify the identified defects. The fact that a matter has not been identified by the employer at the pre-handover review does not preclude the employer from later raising the matter as a defect. 

The Actual Handover Meeting

Immediately before the completion of the works, the contractor must give the employer a notice of completion, after which the employer will summon the contractor for the actual handover meeting. Once the handover meeting has been held, the works are considered handed over to the employer, unless material defects are identified at the meeting. Material defects will particularly be matters preventing the employer’s use of the works to a significant extent. 

At the handover meeting, the employer prepares a handover protocol in which the defects and other matters identified are stated. In addition, the parties agree on the methods and deadlines for the rectification of the defects. The handover protocol will state whether the works are considered handed over.

Defects Liability Period in Accordance With the AB Standards

Inspection of the works is made at the handover, one year after the handover, and again five years after the handover. The purpose of these inspections is to enable the parties to identify any defects together. 

An absolute deadline to present claims regarding defects detected is also regulated in the AB Standards; ie, the employer’s claims must be submitted no later than five years after handover of the works, after which the contractor’s liability for defects generally ceases. Exceptions may be made where the contractor has given a guarantee, the quality assurance process has materially failed, or the contractor has acted in a manner that is grossly negligent. 

Danish Statute of Limitations Act

In Denmark, it follows from the Danish Statute of Limitations Act that a claim becomes statute-barred three years after the claimant became or should have become aware of the circumstances giving rise to the claim. This applies in parallel with the rules in the AB Standards.

The limitation period may be suspended by, for example, mutual agreement, or by taking legal action to pursue the claim. 

Acquiescence Resulting in the Forfeiture of Rights and Failure to Notify of Defects

According to Danish case law, the employer may lose an otherwise entitled claim in respect of defects against the contractor if the employer, for example, fails to notify the contractor within a reasonable period of time after the defects were or should have been discovered (even though the claim is presented within the five-year period). Likewise, the employer may lose its claim if the employer’s behaviour and conduct give the contractor a reasonable expectation that the claim does not exist or has been forfeited. These principles apply in parallel to the AB Standards and the Danish Statute of Limitations Act.

In Denmark, the contract price can either be a fixed price, on account or a combination of these. The most common way of establishing the contract price is by using a fixed price. However, this will depend on the parties’ agreement. 

In general, the contract price includes all services and materials necessary for the contractor’s completion of the scope of works. The contractor’s offer, including the price, is based on the employer’s tender provided to the contractor as a basis for the preparation of the offer. In this way, it is essentially up to the contractor to establish the contract price – assuming, of course, that the employer accepts the offer.

In relation to payments, the contractor is entitled to receive payment twice a month for any works performed and materials delivered to the construction site, in accordance with the AB Standards. However, the parties may instead agree that payment is to be made in accordance with a payment schedule, stipulating the dates or milestones at which a certain percentage of the contract sum falls due for payment, provided that the progress of the works at that time is as planned.

Pursuant to the AB Standards, the contract price is subject to indexation for the works performed more than 12 months after the tender date. The parties can choose and agree on a specific index, and if nothing is agreed, the price is adjusted in accordance with the building or construction cost index which is considered relevant to the works. If the parties cannot agree on the index, ultimately, this may be subject to arbitration or litigation.

The indexation is calculated by linear interpolation and determined by the change in index from six months after the date of the tender and until the time of performance of the relevant work, by using the middle of the period, where the relevant work is performed.

Beside indexation, the risk of large price fluctuations is typically the risk of the employer and can be based on (i) increases which happens as a result of central government intervention or (ii) increases due to market changes.

In respect of increases which are due to market changes, there are particular conditions and thresholds, which need to be met. The increase must concern material which, in finished form or in a customary manner, forms part of the works or for fuel directly used for the works. The increase must occur after the tender date and before any indexation takes effect. Furthermore, the increase must be generally occurring, be apparent from official price documents or be capable of being documented in some other way. Finally, the increase must in aggregate total at least 0.5% of the contract sum, and the price increase for the individual material must be increased by 10% of the price of the relevant material or fuel at the date of tender, with the addition of 0.5 % points for each full month between the date of tender and the date of purchase. Any price increase occurring after the time when the material or fuel was purchased cannot be claimed or compensated.

Where the AB Standards are not used, there are no common rules or practices supporting a possibility to claim indexation or regulation based on price fluctuations.

In cases of late or non-payment, the contractor has a number of options. 

The contractor is entitled to claim interest in accordance with the agreement or, if nothing has been agreed, the Danish Interest Act. 

The contractor is also entitled to stop the construction works if the employer without due cause refuses to pay the amount due by the final date for payment. To be entitled to stop the work, the contractor must first submit a written notice to the employer with a short deadline for payment. The condition thereafter is that the work will be resumed when the payment has been made by the employer. However, stopping the work may include a considerable risk, as the contractor may be liable for the employer’s losses if it turns out that the contractor was not entitled to the payment claimed, and on which basis the works were stopped. 

Ultimately, the contractor may be entitled to terminate the construction contract if the employer fails to fulfil its key obligation, namely payment to the contractor. This depends, however, on the circumstances.

There are no mandatory means of invoicing in Denmark, as this depends on the agreement between the parties. Typically, the parties agree on certain procedures and requirements in respect of invoicing. 

Often, the parties agree that the contractor must forward a “draft invoice” to the employer for approval before submitting the actual invoice (to avoid issuing credit notes, etc). 

Generally, however, no specific rules on this apply – either by law or in the AB Standards.

In accordance with the AB Standards, the tender documents must include a master programme specifying, among other things, the start and end date of the work and interim deadlines, if any. See also 3.4 Construction.

When the construction contract is entered into, the contractor must prepare a working/design schedule and execution schedule that meet the deadlines set out in the agreed master programme.

If it seems likely that the schedules will not be adhered to, they must be updated stating to what extent an extension of time is requested or accepted, and whether the delay concerns a deadline associated with liquidated damages. 

Certain milestones are often included in the master programme, and it is not unusual that if such interim milestones are exceeded by the contractor, this will entitle the employer to claim liquidated damages. The liquidated damages must, however, be specifically agreed and the deadline must have been set to ensure the completion of an activity crucial to the construction process or other material issues.

In the event of delays, the party that becomes aware that there will be a delay must notify the other party as soon as possible. Furthermore, the parties must endeavour to avoid or reduce delays by taking such measures as may reasonably be required.

Delays may entitle either the contractor or the employer, or both, to an extension of time (see also 5.4 Extension of Time). In such cases, the party concerned must notify the other party in writing of the required time extension and the reason for such extension, and the other party must respond to this.

Delays may also entitle the contractor to time-related costs depending on the cause of the delay. If the delay is caused by an event for which the employer is liable, the contractor may be entitled to full compensation for time-related costs. In addition, some events entitle the contractor to an extension of time, but not costs; eg, force majeure events. If the delay is caused by an event for which the employer is not liable, the contractor can, as a general rule, not claim time-related costs.

Concurrent Delay

Concurrent delay occurs when two events, independent of each other, cause delay to a construction project. One event for which the employer is responsible or holds the risk, and the other for which the contractor is responsible or holds the risk.

True concurrency is rare, and at the same time Danish case law on the subject is sparse. However, the contractor may be awarded an extension of time if a concurrent delay has occurred. Depending on the circumstances, the contractor may also be entitled to compensation.

If a contractor is delayed and not entitled to an extension of time, this constitutes an actionable wrong. 

In the event of a delay where the contractor is not entitled to an extension of time, the employer is, as a starting point, entitled to claim its losses covered by the contractor.

However, most construction contracts contain an agreement on liquidated damages if the milestone date is exceeded, which is often agreed as a daily penalty fixed as pro mille of the contract sum (usually in the range of 0.5–2%). 

If liquidated damages have been agreed, the employer is not entitled to claim additional damages as a result of the delay in question – including where the employer’s loss exceeds the liquidated damages. In other words, the liquidated damages replace the employer’s right to claim its losses covered by the contractor in the event of the contractor’s delay. Conversely, the employer does not have to prove a loss if liquidated damages have been agreed. 

As such, there are pros and cons to both types of sanctions (loss covered or liquidated damages). 

If the agreement is deemed unreasonable, however, a Danish court or an arbitral tribunal can revise the agreed rate of liquidated damages.

In accordance with the AB Standards, the contractor is entitled to an extension of time if the execution of the works is delayed as a result of:

• variations to the works ordered by the employer; 
• circumstances relating to the employer or the delay of another contractor;
• events that are not the fault and beyond the control of the contractor (eg, force majeure); 
• weather conditions that prevent or delay the work when such weather conditions occur to a significantly greater extent than is usual for the relevant season and region; or 
• public enforcement notices or prohibitions that are not due to circumstances relating to the contractor.

The contractor must, as soon as possible, notify the employer in writing of the required time extension and the reason for such extension.

During the assessment of a potential delay, the pivotal points of reference are typically the agreed master programme and the working schedule. A fundamental premise underlying this evaluation is the necessity for an observable impact on the critical path within the project framework before the contractor can legitimately claim entitlement to an extension of time.

In the AB Standards, the term “force majeure” covers exceptional external events beyond the control or responsibility of the parties. This would usually include war, riots, acts of terrorism and acts of God.

The term force majeure may differ in Danish construction law, depending on the situation. As such, force majeure is considered to have a wider scope when referring to the contractor’s entitlement to an extension of time compared to when considering the contractor’s risk related to damage to, or loss of, works and materials. 

With regard to the contractor’s entitlement to claim extension of time, matters such as fire, strikes, lockouts, blockage and vandalism are usually considered force majeure. 

In relation to whether the COVID-19 pandemic itself constitutes force majeure, many variables are at play, and no definitive case law has been published on the subject.

The war in Ukraine may, in and of itself, constitute a force majeure circumstance allowing for easing of obligations if the contract was entered into prior to the outbreak of the war.

In order to receive compensation, which under the AB Standards is generally for time only, several criteria must be met, inter alia that the effect must be unforeseeable, and that the parties must fulfil quite strict duties to mitigate the effects, for instance by seeking out other suppliers, materials, etc.   

It is not unusual for the term force majeure to be specifically defined in the construction contract, which may prevent subsequent disputes regarding the interpretation of this term.

Unforeseen circumstances may qualify as force majeure if the circumstances, as mentioned, are exceptional and beyond the control of the parties. However, if the unforeseen circumstances cannot be qualified as force majeure, the question arises as to who is liable for the unforeseen circumstances. 

If unforeseen circumstances – despite the performance of preliminary studies as mentioned in 3.5 Site – lead to public enforcement notices or prohibitions that make it impossible or unreasonably burdensome for the employer to continue with the contract, the employer is entitled to cancel the contract with the contractor. In such case, the contractor is entitled to claim its losses covered by the employer (except lost profit related to non-completion of the remaining works). 

Such scenarios are, luckily, rarely seen, and the most common result of unforeseen circumstances is that the contractor receives an extension of time and additional payment to overcome the unforeseen obstacles, etc.

Disruption may be acknowledged as a legal ground for extension of time and/or compensation depending on the underlying circumstances of the disruption.

There is no pre-defined exhaustive list of which circumstances may constitute disruption. As such, disruption claims must be assessed on a case-by-case basis. However, the following represent three key causes of disruption:

• the employer’s frequent individual changes to the construction project;
• the contractor’s missing access to the works and/or construction site; or
• interruptions to the planning of the construction project.

The contractor must prove that the disruptive circumstances have impacted the critical path and have caused delay to the project if the contractor wishes to claim an extension of time.

The burden of proof lies with the party making a claim, and under Danish law there is generally freedom to consider evidence, meaning that disruption can be proven in several ways. However, typically disruption is proved by the parties’ own accounts of what happened or by expert evidence.

Even if the contractor cannot completely prove the disruption, the contractor may still be awarded a discretionary extension of time and/or compensation.

Lastly, if the contractor wishes to claim compensation, the contractor must be able to prove that the losses originate from the disruptive circumstances.

As a general rule, liability may be limited by the agreement between the parties within construction contracts. In Danish construction contracts, this mainly finds expression in agreeing to a specific cap for which a party can be liable. 

For instance, in ABR 18 (the employer/contractor–consultant standard agreement), the consultant’s maximum liability for damages is limited to twice the agreed consultancy fee, but no less than DKK2.5 million – provided that no project liability insurance has been taken out. 

However, as an exception to the general rule of freedom of contract, it should be noted that an exclusion of liability may not apply if the party in question has acted with gross negligence or wilful misconduct or if the party has materially breached its core obligations.

Wilful misconduct and gross negligence are known legal concepts in Denmark – also in relation to a construction contract. Besides in relation to a limitation of liability as described in 6.1 Exclusion of Liability, these terms are also relevant in relation to the AB Standards and, more generally, compensation.

AB Standards

As an example, even if the five-year absolute deadline for submission of a claim related to defects has been exceeded (as described in 3.11 Defects and Defects Liability Period), the employer’s claims for defects that are a result of the contractor acting with gross negligence or wilful misconduct are not limited by this period. 

Another example is the employer’s relationship to its contractor’s subcontractors. As a part of the AB Standards, the employer waives any claim for non-contractual damages against its contractor’s subcontractors in respect of matters covered by a direct claim for defects. This, however, does not apply if the direct claim for defects against the subcontractor has been caused by an intentional or grossly negligent act on the part of the subcontractor. 

Compensation

Furthermore, negligence is relevant for establishing a basis for liability in relation to compensation. However, in Denmark, ordinary negligence is sufficient to establish this basis of liability.

As described in 6.1 Exclusion of Liability, it is – as a clear starting point – possible to limit one’s liability. 

In Danish construction contracts, this is usually done in the contracts between an employer/contractor and a consultant. Furthermore, a contractor’s liability may also be limited to a certain maximum amount.

Since the AB Standards divide the responsibilities and risks between the parties in a thorough and balanced way, specific indemnity clauses are generally not used to limit risk in relation to construction projects in Denmark.

In accordance with AB 18 and ABT 18, both the contractor and the employer must provide a performance bond as security for the performance of their obligations. This does not apply to the employer if the employer is a social housing organisation or a public employer. 

A performance bond must, unless otherwise agreed, be in the form of an adequate bank guarantee, fidelity insurance or some other adequate type of security. Parent company guarantees do not meet this requirement, but it may be agreed between the parties that such a guarantee is sufficient. 

Until handover has taken place, the contractor’s performance bond must correspond to 15% of the contract sum exclusive of VAT. After handover, the performance bond is reduced to 10%. The performance bond is further reduced from 10% to 2% one year after handover and ceases altogether five years after handover, unless the employer has submitted a prior written notice of defects. In such a case, the bond is reduced when the defects have been rectified. 

The employer’s performance bond must correspond to three months’ average payments – but not less than 10% – of the contract sum exclusive of VAT. The performance bond will cease once the contractor has submitted the final account and has no outstanding claims.

Both the employer and the contractor can request payment under the performance bond. Such request must be made in writing and notified simultaneously to the other party and the guarantor, specifying the amount claimed. The amount claimed is payable to the contractor within ten working days after receipt of the notification unless the relevant other party has filed a request with the Danish Building and Construction Arbitration Board prior to this, asking the board to issue a decision on the security provided under the performance bond, in particular, with a view to determining whether the payment claim is justified.

Some insurances are mandatory when entering a construction contract and carrying out construction work in Denmark. The insurances must be taken out by either the employer or the contractor. 

Insurances Taken Out by the Employer

The employer is obliged to take out and pay for fire and storm insurance according to AB 18 and ABT 18. 

Furthermore, in accordance with the Danish Building Act, the employer must take out building damage insurance if a building is mainly used for residency. This is unless the building is intended to be rented out.

As an optional insurance, the parties can agree on all-risk insurance, which is commonly agreed for large buildings or civil engineering work contracts. 

Insurances Taken Out by the Contractor

The contractor is obliged to take out professional and product liability insurance. This is insurance that covers damages to employer’s or a third-party’s person or property. However, the insurance does not cover damages to objects where the damage is caused during performance of repairs, installing, mounting, or, in other ways, reworks, and where the insured has accepted these works.

The provisions regarding bankruptcy and insolvency are similar in the various AB Standards and apply if a party is declared bankrupt, subject to reconstruction proceedings or if the party’s financial situation in general is such that it must be assumed that the party is unable to perform its obligations under the construction contract.

If one of these scenarios occurs (eg, bankruptcy), the other party is entitled to terminate the construction contract. 

Prior to the actual termination, however, the party must give a written notification to the bankruptcy estate, and the estate must determine whether it wishes to become a party to the contract. This follows from the Danish Bankruptcy Act. 

It is worth noting that the bankruptcy estate must give notice of this without undue delay, and the bankruptcy estate will seldom enter into a construction contract. 

In the situation where a party is subject to reconstruction proceedings or, due to its financial situation, is assumed to be unable to perform the construction contract, that party may avoid a termination by immediately providing adequate security for the performance of the contract.

In Denmark, there is nothing to prevent the parties from agreeing to share a certain risk. However, such risk sharing is not a common practice in construction contracts.

In recent years, there has been an increase in so-called labour clauses. Such clauses usually oblige those working on a construction project to ensure that the workers employed receive wages, special allowances and enjoy working conditions that are no less favourable than those established for work of the same character under a collective agreement entered into by most representative organisations of workers and employers in Denmark in the industry concerned. 

Such clauses are mandatory when one of the parties is a public entity, but these clauses are becoming more and more common for private entities as well.

In accordance with AB Standards, the contractor or consultant may subcontract the execution of the works or the design to subcontractors or subconsultants if it is customary or natural for the works/design to be executed by a subcontractor. 

However, in larger construction contracts, it is often agreed that all or specified parts of the works are to be executed by the contractor or that the employer must pre-approve subcontractors.

Intellectual property is not regulated in the AB Standards. The general starting point according to which the creator has the intellectual property rights therefore still applies. However, the contractor and the employer have a right to use the design materials, descriptions, drawings, etc, made, for example, by the consultant, provided that these are used in an ordinary and intended matter in connection with the construction project. 

The employer’s right to use such documents (drawings, descriptions and other design material) also applies if the employer has rightfully terminated the contract, if the removal or lack of access to these documents would inflict a loss on the employer. 

It is, however, occasionally seen that the parties agree on certain provisions regarding the intellectual property of the design material, etc, prepared in relation to a construction project.

The remedy available in the event of a breach of a construction contract depends on the specific circumstances, notably the severity of the breach and what the breach relates to. 

With regards to termination, under Danish law, a party is generally entitled to terminate a contract if there is a material breach, and such breach may express itself in many ways, just as it may be agreed beforehand in which situations a party may terminate the contract. 

The AB Standards include specific provisions regarding the remedy available in different situations. 

For instance, it follows from the AB Standards that an employer is entitled to demand that a subcontractor or supplier is deprived of its right to execute works and deliver materials to the construction project, if that party has failed materially to comply with applicable rules or agreed terms and conditions on social responsibility, including rules on health and safety at work. Thus, the employer has, in certain circumstances, a right to remove a subcontractor from the construction project even though the employer has no contractual relationship to that subcontractor. 

Nonetheless, the most frequent scenarios are related to delay and defects, and a few notes on these situations are therefore inserted below.

The Employer’s Remedies in Relation to Delay and Defects

The most common remedy available for the employer in the case of a contractor’s delay is liquidated damages, as described in 5.3 Remedies in the Event of Delays.

Furthermore, the employer is entitled to terminate the construction contract in whole or in part with immediate effect in the event of material delay by the contractor. 

With regard to defects, which are assessed at the time of handover, the employer is entitled to retain a reasonable amount as security for the rectification of defects notified at the time of handover. This amount is payable to the contractor as soon as possible after the defects have been rectified. 

The contractor has both a duty and a right to rectify the defects identified at handover. However, if the contractor fails to rectify the defects within a reasonable time, then the employer is entitled to have the defects rectified at the contractor’s expense or to be granted a reduction in the contract sum. 

During the project, the employer is further entitled to terminate the contract if the works are executed at such a low-quality level that the employer has reasonable grounds to assume that the contractor will not be able to complete the works without material defects. 

The Contractor’s Remedies in Relation to Delay

If the employer fails to pay an amount due by the final date for payment, various remedies are available for the contractor. See also 4.3 Payment. 

The contractor may stop work if the employer fails to pay an amount due. Prior written notification with three working days’ notice must, however, be submitted to the employer. 

The contractor is also entitled to terminate the construction contract in the event of material delay related to the employer or delays by another contractor, provided that the employer does not make reasonable efforts to expedite the works. Other material breaches by the employer may also entitle the contractor to terminate the contract.

Provisions containing restriction of remedies are not uncommon in Danish construction contracts, but most commonly the provisions on remedies in the AB Standards are used, though often with certain nuances. 

Danish construction law is, however, not as strict in its literal interpretation as other jurisdictions, and parties sometimes attempt to formulate quite one-sided remedy provisions. Significantly one-sided provisions can be challenged and are sometimes set aside by Danish arbitral tribunals.

Sole remedy clauses where certain types of remedy are strictly excluded, etc, are not common in construction contracts in Denmark. 

As described in 5.3 Remedies in the Event of Delays, liquidated damages are often agreed and entail that the employer is not entitled to claim additional damages related to that delay. This may be considered a sole remedy clause to some extent, but besides such clauses, sole remedy clauses are generally not used. Part of the explanation for this is presumably due to the excluded damages in the AB Standards, see 9.4 Excluded Damages.

In the AB Standards, certain damages are excluded from liability. 

Generally, the contractor is not liable for any loss of business, loss of profit or other indirect losses resulting from defects. In relation to the contractor’s product liability, the contractor is likewise not liable for any loss of business, loss of profit or other indirect losses resulting from damage caused by a defect in a product used in the building or construction works.

Furthermore, in relation to delay caused by the employer, the employer is not liable for lost profits as a result of the contractor being unable to carry out other work in the delay period and similar ensuing losses.

Under Danish law, a party has a general right to withhold or set off payment against the other party if one has a (counter) claim. Such rights may be amended in the construction contract but are most often not amended. 

As such, withholding payment or setting off a claim is a common tool for employers if, for instance, the employer has a claim against the contractor as a result of a breach.

Termination of a Construction Contract by the Employer

The employer may rightfully terminate the construction contract under AB 18 or ABT 18, in whole or in part:

• if the contractor causes material actionable delay in the execution of the works where such delay causes substantial inconvenience to the employer;
• if the contractor causes other material delay with regard to matters of decisive importance to the employer;
• if the works executed are of such quality that the employer has reason to believe that the contractor will not be able to complete the works without material defects; or
• if the contractor otherwise commits material breach with regard to matters of decisive importance to the employer.

If the employer rightfully terminates the contract, the employer may be entitled to compensation for additional costs, in so far as the cost of engaging another contractor to complete the project exceeds the original contract sum. Furthermore, the employer may be entitled to a reduction in the contract price if the works already performed are defective. 

Termination of a Construction Contract by the Contractor

The contractor may rightfully terminate the construction contract under AB 18 or ABT 18:

• in the event of material delay as a result of the circumstances of the employer or delay on the part of another contractor where the employer does not make reasonable efforts to expedite the works to the fullest possible extent; or
• if the employer causes other material delay or commits material breach with regard to matters of decisive importance to the contractor.

If the contractor rightfully terminates the contract, the contractor may be entitled to payment for works already performed. In addition, the contractor may claim a loss of profit for the remaining works that the contractor would have been entitled to perform under the (now terminated) contract.

The public courts are generally competent to adjudicate disputes in Denmark, if nothing else is agreed between the parties. 

However, since the AB Standards include an arbitration clause and since the AB Standards are used in most larger construction contracts, most construction disputes are subject to resolution under the auspices of the Danish Building and Construction Arbitration Board. 

The Danish Building and Construction Arbitration Board presently handles approximately 400 arbitration cases and more than 1,000 requests for expert opinions a year and is therefore highly capable and experienced.

As mentioned, arbitration is commonly used within construction disputes if the parties have based their contract on the AB Standards. 

In addition to arbitration, the AB Standards include various alternative dispute resolution methods.

Dispute Resolution Ladder

The AB Standards contain a so-called dispute resolution ladder. This entails that efforts must be made to resolve and settle a dispute between the parties through negotiation, at either party’s request. 

Mediation, conciliation, speedy resolution and arbitration may not be initiated before the negotiation procedure has been completed.

Mediation and Conciliation

Furthermore, at the request of either party, the Danish Building and Construction Arbitration Board will appoint a mediator with the purpose of settling a dispute. The parties have a duty to participate in the mediation/conciliation process, and no arbitral proceedings may be initiated or continued until the mediation/conciliation process has been completed.

Speedy Resolution

In certain cases, the Danish Building and Construction Arbitration Board can appoint a so-called umpire to make a speedy resolution at the request of a party. 

Not all disputes are suitable for speedy resolution. A few examples of disputes that are suitable for speedy resolution are: 

• the employer’s entitlement to withhold payments or set off an amount in the contractor’s claims for payment;
• the employer’s right to order variations and the contractor’s right to execute such variations;
• disputes with a monetary value of less that DKK200,000; and
• other disputes, if agreed by the parties.