Enforcement of Judgments 2019

Last Updated August 07, 2019

Denmark

Law and Practice

Authors



Poul Schmith is a rapidly expanding Danish law firm comprising 65 partners, more than 350 lawyers and a total staff of 700 people with offices in Copenhagen and Aarhus. With specialists covering practically all legal areas, we have an extensive experience in both the corporate and public sectors, and the title "Kammeradvokaten" indicates its role as the preferred legal adviser to the Danish government. With more than 1.500 court cases and arbitration proceedings, the firm has by far the largest dispute resolution practice in Denmark, handling around two thirds of the cases in the Danish courts.

In Denmark, there are different ways to identify a party’s assets, depending on the type of asset.

Information regarding companies, such as the company registration number, address, business type, annual reports and financial statements are publicly available and can be downloaded through the Central Business Register (CVR). The Register is run by the Danish Business Authority. This makes it possible for a claimant to identify the company’s assets.

In addition, some rights, eg ownership of cars and real estate, must by law be registered in order to be effective. Consequently, the Danish Registration Court has several asset registers, such as the Land Registry Register, the Motor Vehicles Securities Register and the Register of Charges and other Third-party Interests in Residential or Non-residential Cooperative Units. All registered documents are publicly available and can be downloaded from the court’s webpage. 

If a creditor wishes to secure a monetary claim that is not yet enforceable, he or she has the option to request the bailiff’s court to levy an attachment. The bailiff’s court is a division under each of the Danish city courts, whose decisions are subject to interlocutory appeal (in Danish: kæremål). The granting of such a request is based on the assumption that recovery of the claim would otherwise be considerably reduced, cf. The Danish Administration of Justice Act (consolidating Act No. 553 of 24 June 2005, hereinafter ‘the Administration of Justice Act’) section 627. As this is only an interim remedy, cf. the Administration of Justice Act section 634, a confirmatory action must be brought within one week after the attachment. The creditor may be required to provide security for the attachment. The court may order the removal of any chattels so attached and any cash retrieved will be deposited with the bailiff's court, cf. the Administration of Justice Act section 633.

If a prohibitory or mandatory injunction has been ordered under the Administration of Justice Act Part 40, the bailiff's court may also seize any movable property if there is reason to believe that the injunction will be breached or has already been breached, cf. the Administration of Justice Act section 641.

If an asset has been levied, the defendant may not dispose of the asset in a way that is inconsistent with the creditor’s interests. Doing so is a criminal offence (a fraud against creditors) under section 283(1), para (1) of the Danish Criminal Code (consolidated Act No. 1156 of 20 September 2018).

There are three types of judicial decisions: judgments, decisions and orders. A judgment is an enforceable decision which will normally end the proceedings before the court, whereas decisions and orders are normally granted during the proceedings, eg the dismissal of a case based on a procedural issue or the transfer of a case to another court. The bailiff’s courts’ decisions are decisions rather than judgments.

It is possible to obtain different types of judgments in Denmark. Broadly speaking, these include:

  • a judgment for a monetary claim;
  • a declaratory judgment;
  • injunctive relief;
  • a decision in provisional proceedings, eg for costs; and
  • a default judgment

A favourable judgment for a monetary claim can then be taken to the bailiff’s court, which will enforce the judgment. It is possible to use a simplified enforcement procedure provided that the defendant is not expected to object to the claim and the claim is worth 100,000 DKK or less, cf. refer to the Administration of Justice Act, Part 44 a.

A declaratory judgment  is not enforceable as such, but it can form the basis for enforcement proceedings, eg proceedings for possession.

The court may upon application order injunctive relief in the form of a mandatory or prohibitory injunction, cf. the Administration of Justice Act section 411(1). The enforcement of injunctive relief takes place in accordance with the Administration of Justice Act, Part 57.  Decisions on costs may be enforced in accordance with the Administration of Justice Act, Part 57. The enforceable decision may be in the form of a decision, order or judgment.

If a defendant fails to appear or fails to submit a pleading within the time frame set by the court, the case will not usually be rejected, but it may give a judgment in default. When a judgment in default is given, the court will, usually, only moderately test the claim, the supporting documents and the formal issues, but it may in principle involve a full test of the case. Normally, a judgment in default favors the claimant. However, the defendant has quite a broad scope to request the reopening of the case within 4 weeks after having received the judgment in default, cf. the Administration of Justice Act section 367. If the claimant’s pleading is unclear or assumed to be incorrect, the court will usually dismiss the case rather than give judgment in default. 

If the claimant does not (yet) have an enforceable right, he or she can apply to the bailiff’s court for interim remedies, eg an attachment of property, a freezing order, assistance to uphold prohibitory or mandatory injunctions or preservation of evidence (in the case of infringement of intellectual property etc), cf. the Administration of Justice Act, Parts 56-57 a. 

In practice, the enforcement of judgments are handled by the bailiff’s courts, which are divisions of  each of the 24 city courts. The bailiff's courts have several options and procedures available to them to enforce domestic judgments. 

When the bailiff’s court assists with the enforcement of an already established claim, it does so through enforcement proceedings (in Danish: fogedforretning). The rules regarding enforcement proceedings are divided into rules regulating the execution of monetary claims (the Administration of Justice Act, Part 47) and rules regulating claims other than monetary claims (the Administration of Justice Act, Part 48). 

According to these rules, the bailiff’s court has different powers at its disposal, for example:

  • execution;
  • forced sale;
  • possession of mortgaged property;
  • levy an attachment;
  • repossession;
  • eviction; and
  • specific performance

Typically, a levy of execution will be placed on the defendant’s assets to the extent that it covers the claim. The bailiff’s court can levy execution on immovable property, goods, assets etc unless the assets are exempt from execution, eg because they are privileged or have sentimental value.

The bailiff can decide whether the proceedings take place at the bailiff’s office, the defendant’s home address, business address or at the address where the assets are located.

The court fee for an enforcement application is normally 300 DKK plus 0.5 % of the amount exceeding 3,000 DKK. However, if a small money claim form is used, the court fee is fixed at 400 DKK for claims up to 50,000 DKK and 750 DKK plus 1.2 % of the amount exceeding 50,000 DKK for claims between 50,000 DKK and 100,000 DKK. A court fee of 300 DKK plus 1.2 % of the amount exceeding 3,000 DKK is charged for immediate enforcement proceedings. 

An application for enforcement cannot be handed in until the time limit for executing the judgment has expired. The time limit for executing a judgment is normally 14 days, cf. the Administration of Justice Act section 480(1). However, a different deadline may be set out in the judgment. As the bailiff’s court is a division under each of Denmark's city courts, the length of time it takes to enforce a judgment depends on the court. Normally, it will take between one and a half to four months from the date of the enforcement application until the first hearing.

The defendant is obliged to provide the bailiff’s court with the information it seeks, including  information on his or her financial situation, cf. the Administration of Justice Act section 497(1). A failure to answer truthfully is a criminal offence under the Danish Criminal Code, section 162 (false statement) and may be sanctioned with a fine or imprisonment for a term of up to four months.

If the defendant refuses to provide the information in question, the bailiff’s court may issue an order whereby he or she is taken into custody until he or she complies, cf. the Administration of Justice Act section 497(2).

Furthermore, the bailiff’s court may examine the defendant’s house, person etc if deemed necessary for enforcement. The police will assist the court if necessary, cf. the Administration of Justice Act section 498.

A defendant may indirectly challenge the enforcement by appealing the judgment on which the claim was based.

Denmark has a two-tier appellate system. Consequently, a decision from one of the “ordinary” courts may be appealed to a court in the tier above the deciding court without first seeking permission to do so.

In broad terms, the judicial system is composed of the ordinary courts consisting of the 24 city courts (in Danish: byretterne), the Eastern High Court and the Western High Court (in Danish: Østre landsret and Vestre landsret) and the Supreme Court (in Danish: Højesteret). In addition to these, there is the Maritime and Commercial High Court (in Danish: Sø- og Handelsretten) and the Registration Court (in Danish: Tinglysningsretten).

A case which is first heard by a city court may thus be appealed to one of the high courts, and a case which begins in a high court may be appealed to the Supreme Court. For a case to be heard by  the Supreme Court, the appellant must first obtain the permission of the Appeals Permission Board, which requires the case to be a matter of general public importance. There are some other exceptions to the two tier-principle: judgments in default cannot be appealed but can be resumed under certain conditions and an appeal against a claim with a financial value of no more than 20,000 DKK may be lodged, subject to permission from the Appeals Permission Board.

An appeal must be submitted within four weeks of the date of the judgment, cf. the Administration of Justice Act section 372, but to obtain a stay of execution the appeal must be submitted before the end of the time limit for executing the judgment, which is normally 14 days from the date the judgment was delivered, cf. the Administration of Justice Act section 480. However, the court that hears the appeal may decide that the judgment shall be enforced even if the appeal is submitted before the end of the time limit for executing the judgment, or that the appeal should operate as a stay of execution.

In general, all Danish judgments can be enforced. However, there are some very narrow exceptions, eg a judgment in default cannot be enforced if the case has been reopened or if the case involved a (now) dissolved legal entity. Also, case management decisions are  not enforceable since the courts may reverse them if they deem it appropriate to do so, cf. the Administration of Justice Act section 222.

At the present time, there is no central register of domestic judgments. However, the Danish Court Administration is currently working on such a register and plan to implement it in 2021.

Until the central register is implemented, users must obtain copies of judgments through private registers or by buying a copy of a specific judgment directly from the court at a cost of 175 DKK. The individual courts also make copies of selected judgments available, especially high-profile judgments, on their website for download. 

The private registers are typically edited by groups of judges and university professors who select the judgments to be published. All judgments are anonymised. The Danish Ministry of Tax publishes copies of all judgments they are party to, and they too anonymise the judgment prior to publishing. There seem to be no rules or procedures governing the removal of judgments from a register. 

The Danish Administration of Justice Act (consolidating Act No. 553 of 24 June 2005) is the main statute that governs civil proceedings. The rules on enforcement of judgments are also governed by the Act on Recognition and Enforcement of Certain Foreign Judicial Decisions in the area of Civil and Commercial Law (consolidating Act No. 1282 of 14 November 2018, hereinafter ‘the Enforcement Act’). Denmark is a member of the European Union and so is also bound by EU regulations, directives and decisions.

Section 479 of the the Administration of Justice Act states that the Minister of Justice is authorised to lay down rules on enforcement of decisions and agreements by foreign courts and public authorities on civil claims and agreements concerning such claims, if they are not incompatible with the Danish legal policy. The authority provided in this section has been exercised only to a very limited extent.

Consequently, there is no general legal framework applicable to recognising and enforcing foreign judgments, but the enforceability of a foreign judgment depends on there being an applicable convention.

Denmark has four derogations from the EU co-operation, one of them being an opt-out from the area of justice. Consequently, Denmark is exempt from legal standards setting minimum rules in civil cases.

However, Denmark has opted in on several EU regulations and international conventions regulating enforcement of judgments, namely the:

  • Brussels I Regulation (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast));
  • Lugano Convention (Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters); and
  • Hague Convention (Convention of 30 June 2005 on Choice of Court Agreements).

These acts are implemented in Danish law by the Enforcement Act.

Denmark is also a party to the 1933 Convention on recognition and enforcement of judgments rendered in Nordic countries, which, however, has lost its importance, as all the Nordic countries are now parties to either the Brussels I Regulation (Sweden and Finland) or the Lugano Convention (Norway and Iceland).

If a foreign judgment is not covered by any of the above-mentioned acts, it is not automatically recognised nor enforceable under Danish law, and it will consequently be necessary to obtain a judgment on recognition of the foreign judgment. Before a judgment can be enforced, it needs to be recognised. Court proceedings regarding recognition may in theory involve the Danish court hearing all the evidence before issuing a judgment. In addition to documents in Danish, the courts can be expected to accept documents in Swedish, Norwegian or English. Documents in other languages should be submitted in translated copies. The judgment obtained will be enforceable.

In practice, this means that judgments from EU member states, Iceland, Norway, Switzerland and third countries, which are contracting states designated in an exclusive choice of court agreement in accordance with the Hague Convention, can be enforced in Denmark without first obtaining a judgment on recognition, unless there is a reciprocal agreement between the countries.

Please refer to 2.1 Types of Domestic Judgments, where the enforceable types of domestic judgments are discussed. As foreign judgments covered by any of the acts mentioned under 2.1 Types of Domestic Judgments are enforceable in accordance with the rules in the the Administration of Justice Act, the approach to enforcement for different types of judgments will not vary from domestic to foreign judgments. 

Decisions of other EU member states on civil claims in connection with proceedings against a person for an offence that was not intentionally committed will neither be recognised nor enforced in Denmark if the person in question is not a resident or a citizen of the state in which the decision was made, has failed to appear after the court in the state in which the decision was made has ordered that the person in question appear in person, and the person has not had the opportunity of safeguarding his or her interests in the proceedings. This applies both to cases of enforcement under the Brussels Regulation and the Lugano Convention, cf Sections 5 and 8d of the Enforcement Act.

Likewise, decisions on alternative sentences for foreign penalty payments or decisions by foreign courts on the serving of sentences for non-payment of maintenance cannot be enforced in Denmark.

It further follows from the Administration of Justice Act Section 479 that judgments by foreign courts, whatever the circumstances, are not enforceable if such enforcement would be obviously incompatible with the ordre public of Denmark.

In addition, as stated above, the same rules apply as those that apply to national decisions; ie, that certain decisions that only contain a legal consequence and not an actual enforcement situation are not enforceable. This applies both to cases on enforcement under the Brussels Regulation and the Lugano Convention, cf Sections 6 and 8e of the Enforcement Act.

The rules of enforcement follow from the Administration of Justice Act unless otherwise provided in the Enforcement Act.

This means that enforcement as a general rule follows from the Administration of Justice Act, Chapters 45-55, and reference is therefore made to the section on enforcement of national judgments.

There is, however, a difference in that enforcement of foreign judgments, pursuant to the Lugano Convention and the Hague Convention, must be declared enforceable before they can be enforced (exequator procedure). The request in this respect must be submitted in writing to the bailiff's court, cf Sections 8a and 8(i) of the Enforcement Act. At the same time as the request for a judgment being declared enforceable, the enforcement of the judgment may be applied for. There is no equivalent formal requirement to apply for the enforceability of judgments under the Brussels I Regulation, cf the Enforcement Act Section 2(1) e contrario.

It should be noted that a person applying for enforcement under the Hague Convention must appoint a process agent if the person is not a resident of Denmark, cf the Enforcement Act Section 8i(3). For enforcement under the other set of rules, the appointment of a process agent is voluntary.

Submission of a request for enforcement requires the payment of a court fee, the size of which depends on the principal amount involved in the case. If the claimant has been granted free legal aid or has otherwise been exempt from paying fees and costs in the country that delivered the judgment, the person will be exempt from such payments to the same extent under the enforcement proceedings. No other security for costs needs to be provided.

When the request has been received by the bailiff's court, the court will notify the debtor of the time and place of the proceedings, cf the Administration of Justice Act Section 493.

The person against whom the enforcement proceedings are made may object to the request. The bailiff's court will then decide whether a decision is enforceable. Any decision of the unenforceability of a decision is made by a court order that can be appealed to the High Court and – with the leave of the Appeals Permission Board – to the Supreme Court pursuant to the general rules on appeal under the Administration of Justice Act, Part 37.

The time and costs involved in enforcing a foreign judgment are the same as those for enforcing a domestic judgment (please refer to  2.4 Post-judgment Procedures for Determining Defendants' Assets). 

A decision may be enforced as soon as the time limit for executing that decision expires. As mentioned in section 2.4 Post-judgment Procedures for Determining Defendants' Assets above, the time limit is 14 days unless otherwise provided for in the judgment, cf. the Administration of Justice Act section 480. If a judgment is appealed within the time limit for execution, the judgment will not be enforceable . If the judgment is appealed within the time limit allowed for appeal, but after the time limit for execution, the bailiff's court may decide give the appeal suspensory effect, which means that that enforcement cannot take place until the appeal case is finalised.

The jurisdiction in which the judgment was obtained

There is no way to prevent the enforcement of a decision on the basis of the jurisdiction in which the decision was made, if the jurisdiction in which the decision was made is covered by one of the conventions to which Denmark is a signatory.

If the country in which the decision was made is not covered by one of these conventions, a judgment from that country cannot be enforced without first being recognised in Denmark. 

Invalid service (in the foreign jurisdiction)

It follows from Article 46, cf. Article 45, of the Brussels Regulation and from Article 34 of the Lugano Convention that enforcement upon request to this effect may be refused if:

  • enforcement is manifestly contrary to Danish  public policy;
  • the judgment was given in default of appearance. If the defendant was not served with the documents that instituted the proceedings or did not receive the documents in sufficient time and in such a way as to enable him to arrange his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;
  • the judgment is irreconcilable with a judgment given between the same parties in Denmark;
  • if the judgment is irreconcilable with an earlier judgment given in another member state or in a third state involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in Denmark; or if
  • the judgment conflicts with certain sections of the regulations, eg where the defendant was an employee, consumer etc.

An example of enforcement being refused due to the writ not having been served correctly is found in the decision of the Western High Court of 13 April 1999 (reported in the Danish Weekly Law Reports, U.1999.1257V). In that case, a request had been made for enforcement of a Belgian default judgment against a Danish debtor. The High Court found that it had not been proven to the court's satisfaction that the debtor had been made aware of the writ in time to allow the debtor to safeguard his interests in the case. Accordingly, the judgment was found to be unenforceable pursuant to the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. The request to enforce the judgment in Denmark was thus refused.

Enforcement pursuant to the Hague Convention can be refused as a result of the reasons listed in Article 9 of the Convention. The reasons largely correspond to those mentioned above under the Brussels I Regulation and the Lugano Convention, but also include some exceptions regarding the invalidity of the jurisdiction agreement, the legal incapacity of the parties, judgments obtained by fraud in connection with a matter of procedure and situations where the procedure preceding the judgment was in violation of the fundamental principles of procedure of Denmark. In such situations, enforcement may be refused.

Under Danish law, claims established by a judgment are subject to a ten-year limitation period, cf. section 5(1)(3) of the Danish Limitation Act (consolidated Act No. 1238 of 9 November 2015). Consequently, the enforcement of a domestic judgment will be denied if it is sought more than ten years after the judgment was given.

However, the question of limitation is considered to be a matter of substantive law rather than a procedural issue in Denmark.  Accordingly, questions regarding the limitation period for a judgment will, in general, be decided by the lex causae rule. It should be noted that Danish courts will only consider the issue of limitation if the question is raised by the defendant or if the judgment is given in default of appearance.

The parties may agree to arbitration; both ad-hoc and institutional arbitration are widely used. Arbitration in Denmark is governed by the Danish Arbitration Act (Act no. 553 of 24 June 2005 on Arbitration) which, to a large extent, follows the 1985 UNICTRAL model law. In addition, Denmark is party to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention).

Denmark has several arbitral institutes. The Danish Institute of Arbitration processes all types of cases; the rules governing the Institute's arbitration procedures entered into force on 1 May 2013. As to the Danish Institute of Arbitration, the judges are usually appointed by the parties and the chairman by the Institute.

The fact that a dispute has been determined by arbitration does not prevent a party from requesting that the courts initiate enforcement of the award. Part 9 of the Arbitration Act concerns the recognition and enforcement of arbitral awards. It should be noted that Part 9 cannot be derogated from by agreement.

It follows from section 38(1) of the Act that arbitral awards delivered in both Denmark or abroad have binding effect and may be enforced according to the rules on the enforcement of judgments, unless one of the derogations under section 39 applies. A certified copy of the arbitral award and the arbitration agreement, if in writing, must be submitted. If necessary, the documents must be accompanied by a certified translation into Danish. There is no pre-condition  that the award be made by a signatory to the New York Convention or that it otherwise concerned commercial arbitration.

Whether the matter before the arbitration tribunal was decided by award or by decision is of fundamental importance since only arbitration awards can be enforced in Denmark, cf. section 38(1) of the Arbitration Act.

An example of this is the Eastern High Court ruling in the case reported in the Danish Weekly Law Reports, U.2012.3456/1Ø. The case concerned a settlement in an arbitration case where the parties left it to the arbitration tribunal to decide the costs. The result of the arbitration tribunal was delivered as a decision. The Eastern High Court found that only arbitration awards can be enforced in Denmark, cf. section 38(1) of the Arbitration Act, therefore the motion for execution of the legal costs was therefore refused. 

An arbitration award generally ends the processing of the matter or claim before the arbitration tribunal, whether the award concerns the merits of the case or procedural issues.  An example of the latter is an award to dismiss the case due to the arbitration tribunal's lack of jurisdiction, cf. section 16(2) of the Act.

An arbitration award must meet the conditions set out in section 31 of the Arbitration Act (corresponding to Article 31 of the Model Law), ie it must be in writing, be signed by the arbitrators, state the reasons for the the award unless the parties have agreed that it is not to be reasoned or, unless it is an award on agreed terms in accordance with section 30 (corresponds to Article 30), dated and states the place of arbitration. The validity of an arbitration award is contested through separate proceedings before the courts or through enforcement proceedings, cf. sections 37 and 39 of the Act. 

The decision form is used for issues of a technical or procedural nature that are decided during the processing of the case, such as a decision to request an expert report or questioning of witnesses at the same time. The decision form is not mentioned in the Arbitration Act, therefore no formal requirements apply.

If it is an arbitral award, it does not matter whether the award was made in Denmark or abroad, irrespective of whether the award is final, partial, corrected, additional, on agreed terms or is awarded in the event of the absence of a party. All types of arbitral awards can be enforced in accordance with the general rules for enforcement listed in the Danish Administration of Justice Act.

As already stated, it follows from section 38(1) of the Danish Arbitration Act that arbitral awards can be enforced under the same conditions as the enforcement of judgments under the Danish Administration of Justice Act, unless one of the grounds for refusal from the exhaustive list in section 39 applies.

The grounds for refusal are divided into (i) grounds for refusal at the request of a party, cf. section 39(1), para (1) and (ii) grounds for refusal at the court’s discretion, cf. section 39(1) para (2).

The grounds for refusal at the request of the parties include the following, cf. section 39(1), para (1):

  • a party to the arbitration agreement was, under the law of the country in which that party was domiciled at the time of conclusion of the contract, under some incapacity, or the said agreement was not valid under the law to which the parties subjected the arbitral dispute or, failing any indication thereon, under the law of the country where the award was made;
  • the party against whom the award was made was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his or her case;
  • the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration;
  • the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or with the law of the country where the arbitration took place; or
  • the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made

The burden of proof lies with the party who wishes to have enforcement of the award refused.

The court will refuse enforcement on its own motion (ex officio) if the court finds that the subject matter of the dispute is not capable of settlement by arbitration under Danish law, or the enforcement of the award is contrary to Danish public policy ("ordre public"), cf. section 39(1), para (2).

This was confirmed by the Supreme Court judgment of 28 January 2016 (reported in U.2016.1558/2H) where the Supreme Court held that an arbitral award can only be set aside in the extraordinary circumstances of such extremely grave errors that the arbitral award is manifestly incompatible with the legal order of the country. In that case, company A had, by an arbitral award, been ordered to pay damages of 20 million DKK to company B for breach of certain obligations under a distribution agreement. Company A claimed that the arbitral award should be set aside by reason of invalidity, claiming, among other things, that it was in breach of the Danish "ordre public" insofar as the award enforced a distribution agreement which, in Company A's opinion, was in breach of EU competition law. The Supreme Court did not find that the arbitration tribunal had committed such extremely grave errors that the award was manifestly incompatible with Danish public order. The conditions for setting aside the arbitral award as invalid had, therefore, not been fulfilled.

The exceptions are similar to Article 26 of the UNICITRAL model law.

An arbitral award cannot be refused enforcement on the ground that the tribunal has applied the chosen law incorrectly or has got the facts of the case wrong, unless the mistake was so severe that enforcement would be contrary to the Danish public policy, and thus a ground for refusal under section 39(1) para (2)(b).

If the ground for refusal only applies to a part of the arbitral award, then only that part will be refused enforcement, cf. section 39(2).

It should be noted that section 39 cannot be derogated from by agreement. However, some of the grounds for refusal of enforcement, eg the composition of the tribunal, cf. section 39(1) para (1)(d), may be deemed to have been waived if the party claiming refusal did not object during the proceedings provided thathe or she was aware of the grounds for the challenge, cf. section 13(4).

In addition to the grounds for refusal of enforcement as set out in the Danish Arbitration Act, section 39, it should be noted that Danish arbitral awards are subject to a ten-year limitation period, cf. section 5(1) para (3) of the Danish Limitation Act. The limitation period for foreign arbitral awards will normally be decided in accordance with lex causae (see 3.6 Challenging Enforcement of Foreign Judgments).

The enforcement of an arbitral award follows the same procedure as the enforcement of a judicial judgment, ie in accordance with the Danish Administration of Justice Act, Parts 45-55.  Hence, the request for enforcement must be made to the bailiff's court, cf. the Administration of Justice Act section 488(1).

It should be noted that the bailiff’s court operates on the submission of a clear and undisputed right by the claimant, which it then enforces. 

The date of enforcement is generally 14 days from delivery of the award unless otherwise stated in the award, cf. the Administration of Justice Act section 480(1). The request for enforcement cannot be made until the time limit in section 480(1) has expired, cf. section 486(1), unless the debtor consents or if it can be assumed that the possibility of recovery would otherwise be considerably reduced, cf. section 486(2). It should be noted in that respect that an arbitral award is not subject to appeal.

The arbitral award must include the same information when submitted, eg the name of the creditor, the relevant documentation to prove the owner, the capital amount, interest and costs etc.

Furthermore, a transcript of the award and of the written arbitration agreement (provided that such a written agreement exists) must be produced and, at the request of the bailiff's court, a Danish translation of the documents, cf. section 38(2) of the Arbitration Act.

If the request is submitted to the bailiff's court and contains the correct documents, the court will determine the time and place for the enforcement proceedings, cf. section 491. The party having requested the enforcement must, as a general rule, appear at the proceedings if the claim exceeds 2,500 DKK, excluding interest and costs, cf. section 492(2) e contrario.

The enforcement proceedings may take place at the offices of the court or at the place of residence or abode of the debtor or at the place where he conducts his business, cf. section 494(1).

If the debtor, despite proper service, fails to appear, the bailiff's court may decide that he be taken into police custody until he can be brought before the court, cf. section 494(2).

The court fee for an enforcement application is normally 300 DKK plus 0.5 % of the amount exceeding 3,000 DKK. However, if the small money claim procedure is used, the court fee is fixed at 400 DKK for claims up to 50,000 DKK and 750 DKK plus 1.2 % of the amount exceeding 50,000 DKK for claims between 50,000 DKK and 100,000 DKK. A court fee of 300 DKK plus 1.2 % of the amount exceeding 3,000 DKK is charged for immediate enforcement proceedings. 

As the bailiff’s court is a division under each of the city courts in Denmark, the length of time it takes to enforce an arbitral award depends on the court. Normally, it will take between one and a half and four months to process an enforcement claim. 

Please refer to 3.2 Variation in Approach to Enforcement of Foreign Judgments where the grounds for refusal of enforcement are discussed.

Poul Schmith

Vester Farimagsgade 23
1606 Copenhagen
Denmark

+45 33 15 20 10

+45 33 15 61 15

mail@poulschmith.dk www.poulschmith.com
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Trends and Developments


Authors



Poul Schmith is a rapidly expanding Danish law firm comprising 65 partners, more than 350 lawyers and a total staff of 700 people with offices in Copenhagen and Aarhus. With specialists covering practically all legal areas, we have an extensive experience in both the corporate and public sectors, and the title "Kammeradvokaten" indicates its role as the preferred legal adviser to the Danish government. With more than 1.500 court cases and arbitration proceedings, the firm has by far the largest dispute resolution practice in Denmark, handling around two thirds of the cases in the Danish courts.

Digitalisation

In 2018, Denmark was elected e-government world champion by the UN (UN E-Government Development Index). Denmark has for many years had a digitalisation strategy, the most recent being "The Common Public Digitalisation Strategy 2016-2020". The strategy aims to, by interacting with the business community, create value, growth and efficiencies through e-government while at the same time maintaining public confidence in the digital society.

The Danish courts have also focused on digitalisation. They prepared a digitalisation strategy for 2014-2018 which defined the digital legal process for the first time and it also follows from their strategy for 2019-2022 and their action plan for 2019 that digitalisation remains their major focus. Most recently, Denmark was given the role of the pioneering country in connection with a research project based on a cooperation agreement between the University of Copenhagen (Copenhagen, Denmark), the University of Southern Denmark (Odense, Denmark) and the Nordic Council of Ministers. The research project examines the digitalisation of the Nordic and Baltic countries’ courts, with the objective of strengthening  cooperation on digitalisation.

The increased focus on digitalisation might have an impact on the enforcement of Danish and foreign judgments in Denmark since, as a general rule, it is now mandatory to use the new digital case portal, which makes knowledge of the digital process essential, including knowledge of the circumstances in which the requirement to use the portal may be derogated from.

In addition, the Danish Parliament has adopted a resolution to establish a digital judgment database for the publication of judgments, which is expected to streamline processing and enhance the standardisation of civil procedure cases. 

Finally, it is worth mentioning that innovation and new technology are increasingly focused on by Danish advisors who continuously develop new LegalTech solutions to make the law more accessible through innovation. It is not inconceivable that digital solutions will be developed to smoothen the process of enforcing Danish and foreign decisions in Denmark.

The case portal of the Danish courts

As stated, one of the most recent digitalisation initiatives was the introduction of the case portal, which was implemented at the end of 2017 under the authority of Act no. 1867 of 29 December 2015. The case portal is the digital case handling portal of the Danish courts through which all civil cases are to be brought and handled. This means that civil lawsuits are handled digitally, and exclusively so, and that cases no longer exist in hard copy in the court system. All communication between the parties and the court, as well as exchanges of documents, including pleadings with exhibits, court records and the judgment itself must be uploaded via the portal.

One of the practical consequences of using the case portal is that any contact with the court that does not take place through the case portal will not interrupt the limitation period if the case and the party are subject to the digital case handling requirement.

A digital message on the case portal is deemed to be received by the court at the moment at which the message can be read and processed by the court. It is of no matter whether the court in fact reads or processes the message, see section 148a(2) of the Administration of Justice Act.

As for service of notice, the introduction of the case portal means that only the writ of summons and the notice of appeal must be served, whereas all other pleadings in a case merely need to be uploaded to the case portal, see section 153(1) of the Administration of Justice Act. Hence, a party is no longer required to submit a copy of pleadings and with related documents to the opponent. Instead, it is now the duty of the court to make the parties aware of such documents by publishing them in the case portal along with an e-mail alert. It is thus assumed that the court's notification to a party through the portal is sufficient for the party to protect his or her interests in the proceedings. In respect of cases and persons not subject to the case portal handling requirement, all procedural messages must still be served in accordance with the provisions of sections 155 ff of the Administration of Justice Act (consolidated Act No 1284 of November 2018).

As a clear basic principle, it is mandatory to use the case portal. The court may refuse to process a case that is received by post or by e-mail, see section 148a of the Administration of Justice Act. However, there are certain exceptions.

First, the case portal only covers cases processed under the civil procedure rules. Enforcement law cases, including appeals against the rulings of the bailiff's court, will not, as a general rule, be subject to the digital case handling requirement. This means that enforcement cases are still submitted and handled by the bailiff's court as usual. However, the Minister of Justice is, under section 148a(8) of the Administration of Justice Act, authorised to lay down rules to the effect that appeals against the rulings of the bailiff's court must be lodged via the case portal. This authorisation has not yet been exploited. However, interim prohibitory and mandatory injunctions are subject to the digital case handling requirement since they do not fall within the ambit of enforcement law, see Part 40 of the Administration of Justice Act. 

The digital service of notices has long been possible under section 156b of the Administration of Justice Act,  as long as the recipient acknowledges receipt of the notice. Under the simplified digital service process of section 156b of the Administration of Justice Act, a notice is deemed to have been served when the notice, or the message to which it was attached, has been opened or otherwise processed. In this connection it should be noted that work is in progress on the existing enforcement system with the objective of enabling service directly from the system as a simplified digital service in accordance with section 156c of the Administration of Justice Act. Although enforcement proceedings are not processed via the case portal, it will still be possible to serve a notice through the simplified digital service process. 

The court may decide to exempt a party or a court-appointed expert etc from using the case portal if that person cannot be expected to use the portal, see section 148a(4).

To gain access to the case portal, the parties must have a "digital signature" in order to log on to the portal. A digital signature requires a Danish civil registration number or a Danish company registration number; people and business undertakings that are unable to meet these requirements cannot use the case portal. It is explicitly stated in the list of exemptions that business undertakings are not exempted from the requirement unless they reside abroad. Likewise, a party with a representative who is able to handle the case digitally will not be exempt from the requirement. This means that a foreign party assisted by a Danish attorney must, as a general rule, use the case portal.

The court's decision that a case (or part thereof) is not to be brought or handled via the case portal may be appealed and is subject to the same rules as decisions made during the pre-trial procedure, see section 389a(1) of the Administration of Justice Act.

Requests for the enforcement of decisions in Denmark must still be lodged with the bailiff's court, not through the case portal. Any changes in this respect will require an amendment of the Administration of Justice Act. Foreign parties will only be required to use the case portal in connection with civil cases before the Danish courts if they engage a representative who meets the conditions for access to the portal. At this stage, the case portal is therefore of little relevance to cases on enforcement of decisions.

Digital judgments

The Danish courts currently publish copies of selected judgments directly on their websites, but there is no public database containing Danish judgments. Citizens, attorneys and other interested parties must, in most cases, use private databases or order a specific judgment directly from the court at a price of DKK175.

Section 9a of the Court Administration Act (Consolidating Act no. 390 of 25 August 2017) was incorporated by Act no. 1867 of 29 December 2015. This provision stipulates that the Court Administration must establish and operate a digital judgment database for the publication of judgments. The database will be publicly available and free of charge for everyone, and it will be possible to subscribe to specific judgments via an RSS feed.

The initiative was based on the desire to strengthen the due process of law through free access to judgments made by Danish courts and to ensure the more efficient handling of civil cases (see the first reading of Bill no. 22 of 7 October 2015). However, the establishment of the database has been postponed several times – most recently due to the cancellation of the contract with the firm in charge of the IT system behind the database. The contract has been put up for tender once more. The implementation of the database is currently expected to take place in 2021.

It follows from the preparatory works (Bill no. 22 of 7 October 2015) that the database will initially only include judgments delivered in civil cases, but, in the long term, it is expected to include judgments in criminal cases. Likewise, rulings and orders will not initially be included in the database. With the reference to civil cases, the legislature has (at least provisionally) decided to exempt decisions made by the bailiff's courts, the probate courts and the Registration Court, whose judgments will not be published in the database. The Court Administration is, under section 9a(4) of the Court Administration Act, authorised to decide which judgments are to be included in the database.

As stated, the decisions of the bailiff's courts on enforcement will not (initially) be included in the judgment database. However, judgments delivered by the Danish courts – including judgments on enforcement – will be included.

An example of a judgment on enforcement which would be included in the judgment database is the Supreme Court judgment of 19 January 2017  (reported in U.2017.1262H). In this case, the Danish prosecution service was requested to take over the enforcement of a Polish criminal sentence against a Danish citizen pursuant to the EU Sentence Enforcement Act. In this case, the Supreme Court found that the EU Sentence Enforcement Act did not apply, and the case was therefore remitted to the city court for hearing.

Judgments concerning questions related to the enforcement of Danish and foreign decisions will be covered by this initiative. This is relevant since the rulings of the bailiff's court on enforcement can be appealed, whereupon the high courts will make a decision through a ruling. Obviously, most decisions regarding enforcement will be through rulings.

See for example the Eastern High Court ruling of 19 January 2016 (reported in U.2017.1345ØLK) in which the bailiff's court recognised two arbitral awards for the purpose of enforcement. The decision of the bailiff's court was appealed by the defendant who claimed that it would be in breach of the Danish “ordre public” to recognise the arbitral awards. The Eastern High Court upheld the ruling of the bailiff's court.

It follows that the judgment database will be gradually developed since the database requires digitalisation of the court’s case handling systems, thus the first version of the database will include only a limited number of judgments. It is not yet clear whether it is the intention to eventually include enforcement cases in the database.

Development of new digital products

The increased focus on digitalisation and technology has  resulted in many Danish advisors focusing on the development of innovative solutions and products that enhance, optimise and, to a wide extent, automate the legal process.

All top ten law firms in Denmark, together with several other firms, offer LegalTech solutions to support their clients and, in general, these solutions are free of charge.

Specific examples of LegalTech solutions include: (i) tools for developing contracts, preparing reviews and updating templates simultaneously (Contractbook’s “Suits”); (ii) tools giving clients access to their own cases (Poul Schmith’s “Caseview”), contract management systems (Gorrissen Federspiel’s “Omnicent” and Kromann Reumert’s “Contract management system”); (iii) tools that are able to develop basic legal documents and standard contracts automatically (Poul Schmith’s “Docufy” and Bech Bruun’s “BB Smartdraft”); and (iv) tools that digitalise the processing of bankruptcy estates (Poul Schmith’s “Bankruptcy Portal” and Kromann Reumert’s “Konkursinfo”). In addition, some of the major trends within LegalTech are expected to include  artificial intelligence, regulatory technology and voice assistants.

Although none of these tools specifically targets the enforcement of decisions, it is not inconceivable that digital solutions will be developed to smoothen the process of enforcement of Danish and foreign decisions in Denmark.

Poul Schmith

Vester Farimagsgade 23
1606 Copenhagen
Denmark

+45 33 15 20 10

+45 33 15 61 15

mail@poulschmith.dk www.poulschmith.com
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Law and Practice

Authors



Poul Schmith is a rapidly expanding Danish law firm comprising 65 partners, more than 350 lawyers and a total staff of 700 people with offices in Copenhagen and Aarhus. With specialists covering practically all legal areas, we have an extensive experience in both the corporate and public sectors, and the title "Kammeradvokaten" indicates its role as the preferred legal adviser to the Danish government. With more than 1.500 court cases and arbitration proceedings, the firm has by far the largest dispute resolution practice in Denmark, handling around two thirds of the cases in the Danish courts.

Trends and Development

Authors



Poul Schmith is a rapidly expanding Danish law firm comprising 65 partners, more than 350 lawyers and a total staff of 700 people with offices in Copenhagen and Aarhus. With specialists covering practically all legal areas, we have an extensive experience in both the corporate and public sectors, and the title "Kammeradvokaten" indicates its role as the preferred legal adviser to the Danish government. With more than 1.500 court cases and arbitration proceedings, the firm has by far the largest dispute resolution practice in Denmark, handling around two thirds of the cases in the Danish courts.

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