In Denmark, there are a variety of ways to identify a party’s assets, depending on the type of asset in question.
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 Co-operative 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 (kæremål). The granting of such a request is based on the assumption that recovery of the claim would otherwise be considerably reduced, see Section 627 of the Danish Administration of Justice Act (Consolidating Act No 938 of 10 September 2019 or the Administration of Justice Act). As this is only an interim remedy, pursuant to Section 634 of the Administration of Justice Act, 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, see Section 633 of the Administration of Justice Act.
If a prohibitory or mandatory injunction has been ordered under Part 40 of the Administration of Justice Act, 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, see Section 641 of the Administration of Justice Act.
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), paragraph 1 of the Danish Criminal Code (Consolidated Act No 976 of 17 September 2019).
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 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 DKK100,000 or less, refer to Part 44 a of the Administration of Justice Act.
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, see Section 411(1) of the Administration of Justice Act. The enforcement of injunctive relief takes place in accordance with Part 57 of the Administration of Justice Act, as do decisions on costs. 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 the court 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 favours the claimant. However, the defendant has quite broad scope to request the reopening of the case within four weeks after having received the judgment in default, see Section 367 of the Administration of Justice Act. 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), see Parts 56–57 a of the Administration of Justice Act.
In practice, the enforcement of judgments is 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 (fogedforretning). The rules regarding enforcement proceedings are divided into rules regulating the execution of monetary claims (Part 47 of the Administration of Justice Act) and rules regulating claims other than monetary claims (Part 48 of the Administration of Justice Act).
According to these rules, the bailiff’s court has different powers at its disposal, for example:
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 DKK300 plus 0.5% of the amount exceeding DKK3,000. However, if a small money claim form is used, the court fee is fixed at DKK400 for claims up to DKK50,000 and DKK750 plus 1.2% of the amount exceeding DKK50,000 for claims between DKK50,000 and DKK100,000. A court fee of DKK300 plus 1.2% of the amount exceeding DKK3,000 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, see Section 480(1) of the Administration of Justice Act. 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, see Section 497(1) of the Administration of Justice Act. A failure to answer truthfully is a criminal offence under Section 162 of the Danish Criminal Code (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, see Section 497(2) of the Administration of Justice Act.
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, see Section 498 of the Administration of Justice Act.
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 (byretterne), the Eastern High Court and the Western High Court (Østre landsret and Vestre landsret) and the Supreme Court (Højesteret). In addition to these, there is the Maritime and Commercial High Court (Sø- og Handelsretten) and the Registration Court (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 DKK20,000 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, see Section 372 of the Administration of Justice Act, 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, see Section 480 of the Administration of Justice Act. 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, see Section 222 of the Administration of Justice Act.
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 plans 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 DKK175. 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 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 or 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 Administration of Justice Act states that the Minister of Justice is authorised to lay down rules on the 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 to several EU regulations and international conventions regulating the enforcement of judgments, namely the:
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 neither 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 that 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 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:
This applies both to cases of enforcement under the Brussels Regulation and the Lugano Convention, see 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 Section 479 of the Administration of Justice Act 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, see 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 Chapters 45–55 of the Administration of Justice Act, 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, see Sections 8a and 8(i) of the Enforcement Act. The enforcement of the judgment may be applied for at the same time as the request for a judgment being declared enforceable. There is no equivalent formal requirement to apply for the enforceability of judgments under the Brussels I Regulation, see Section 2(1) of the Enforcement Act 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, see Section 8i(3) of the Enforcement Act Section. 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, see Section 493 of the Administration of Justice Act.
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 Part 37 of the Administration of Justice Act.
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, the time limit is 14 days unless otherwise provided for in the judgment, see Section 480 of the Administration of Justice Act. 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 to 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, see 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:
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.
Issues of Limitation
Under Danish law, claims established by a judgment are subject to a ten-year limitation period, see 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 UNCITRAL 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. Judges for disputes before the Danish Institute of Arbitration are usually appointed by the parties, and the chairman are usually appointed 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 concern 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, see 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, see Section 38(1) of the Arbitration Act, 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, see Section 16(2) of the Arbitration 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). It must:
The validity of an arbitration award is contested through separate proceedings before the courts or through enforcement proceedings, see Sections 37 and 39 of the Arbitration 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 of the Arbitration Act applies.
The grounds for refusal are divided into (i) grounds for refusal at the request of a party (see Section 39(1), paragraph 1), and (ii) grounds for refusal at the court’s discretion (see Section 39(1) paragraph 2).
Refusal at the Request of a Party
The grounds for refusal at the request of the parties include the following:
The burden of proof lies with the party who wishes to have enforcement of the award refused.
Refusal at the Court’s Discretion
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).
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 DKK20 million 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) paragraph 2(b).
Partial Refusal, Derogation and Limitations
If the ground for refusal only applies to a part of the arbitral award, then only that part will be refused enforcement, see 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, see Section 39(1) paragraph 1(d)), may be deemed to have been waived if the party claiming refusal did not object during the proceedings provided that he or she was aware of the grounds for the challenge, see Section 13(4).
In addition to the grounds for refusal of enforcement as set out in Section 39 of the Danish Arbitration Act, it should be noted that Danish arbitral awards are subject to a ten-year limitation period, see Section 5(1) paragraph 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 Parts 45-55 of the Danish Administration of Justice Act. Hence, the request for enforcement must be made to the bailiff's court, see Section 488(1) of the Administration of Justice Act.
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, see Section 480(1) the Administration of Justice Act. The request for enforcement cannot be made until the time limit in Section 480(1) has expired (see Section 486(1)), unless the debtor consents or if it can be assumed that the possibility of recovery would otherwise be considerably reduced (see Section 486(2)). It should be noted in this 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.
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, see 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, see Section 491. The party having requested the enforcement must, as a general rule, appear at the proceedings if the claim exceeds DKK2,500, excluding interest and costs, see 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 or she conducts his or her business, see Section 494(1).
If the debtor, despite proper service, fails to appear, the bailiff's court may decide that he or she should be taken into police custody until he or she can be brought before the court, see Section 494(2).
The court fee for an enforcement application is normally DKK300 plus 0.5% of the amount exceeding DKK3,000. However, if the small money claim procedure is used, the court fee is fixed at DKK400 for claims up to DKK50,000 and DKK750 plus 1.2% of the amount exceeding DKK50,000 for claims between DKK50,000 and DKK100,000. A court fee of DKK300 plus 1.2% of the amount exceeding DKK3,000 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 Variations in Approach to Enforcement of Foreign Judgments, where the grounds for refusal of enforcement are discussed.
The 2019 Hague Judgment Convention
On 2 July 2019, the Hague Conference on Private International Law concluded the text of The Hague Judgments Convention (the Convention on Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters). The convention is complementary to the Hague Convention of 30 June 2005 on Choice of Court Agreements, which convention was only implemented in Denmark in 2017.
The European Commission started a consultation process in February 2020 to get feedback on whether the EU should accede to the Hague Judgment Convention.
Due to its derogation from EU co-operation in the area of justice, Denmark will, however, not automatically accede to the convention, even if the EU choose to do so. There are currently no official ongoing discussions in Denmark as to whether Denmark wants to accede to the convention.
The outbreak of COVID-19 in 2020 has had large effects on ongoing litigation and arbitration proceedings in Denmark, as it has for the rest of the world. The global discussion regarding virtual courts and hearings is also an important topic of discussion in Denmark and, as described below, due to a progressive digital strategy, the Danish courts are also working on a digital basis.
However, the administration of justice in Denmark is based on the fundamental principle that the public has the right to be present at all court hearings and – while the court may allow the parties and/or the witnesses to attend an oral hearing through the use of telecommunications equipment and, subject to the parties’ consent, may also direct the case to be decided without an oral hearing – the law does not allow the court to direct virtual oral hearings. Consequently, in dealing with the COVID-19 outbreak, the Danish courts were able to continue their preparatory work without delay and, for a period of two and a half months, only to carry out oral proceedings in those civil and criminal cases that were defined as critical and to adjourn all other cases, unless the parties agreed that the court should decide the case without an oral hearing.
Perhaps COVID-19 will be the triggering factor needed for these digital changes to be made but this remains to be seen.
In 2018 and in 2020, Denmark was elected e-government world champion by the UN (UN E-Government Development Index). Denmark has had digitalisation strategies for many years, the most recent being "The Common Public Digitalisation Strategy 2016–2020". The strategy aims, by interacting with the business community, to create value, growth and efficiencies through e-government while at the same time maintaining public confidence in digital society.
As mentioned above, the Danish courts are focused on digitalisation. They prepared a digitalisation strategy for 2014–2018, which defined the digital legal process for the first time. It also follows from their strategy for 2019–2022, and their action plan for 2020, that digitalisation remains their major focus.
In 2019, Denmark was given the role of the pioneering country in connection with a research project based on a co-operation 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 co-operation 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 (discussed below), 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. COVID-19 will promote, in our opinion, the acceleration of this process and the development of further digital solutions. Thus, it is not inconceivable that digital solutions will be developed to smoothen the process of enforcing both Danish and foreign decisions in Denmark.
The Case Portal of the Danish Courts
As stated above, 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 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 938 of 10 September 2019).
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, 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 the enforcement of decisions.
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 April 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 and 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 the 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:
In addition, some of the major trends within legaltech are expected to include artificial intelligence, regulatory technology and voice assistants. One of the newest legaltech products on the Danish market is Poul Schmith’s “E-compliance” – a subscription-based digital service, which helps to ensure that websites and applications constantly comply with their legal requirements – and Gorrissen Federspiel’s “HuRa” – an HR chatbot that helps employees to answer questions about the Danish Holiday Act.
Although none of these tools specifically targets the enforcement of decisions, it is not inconceivable that digital solutions will be developed to smooth the process of enforcement of Danish and foreign decisions in Denmark.