Contributed By Plesner
State courts cannot intervene in the constitution of an arbitral tribunal on their own volition but may under Section 11(2) of the DAA assist the parties with the constitution of the arbitral tribunal, if so requested.
Where Section 11(2) (see 4.2 Default Procedures) does not result in the constitution of the arbitral tribunal within the time limit specified therein, each party may petition the courts to appoint an arbitrator on behalf of the defaulting party or the co-arbitrators. The courts will accede to such a request whenever (i) the seat of the arbitration is located in Denmark or undetermined or the court has jurisdiction ratione personae over either one of the parties; and (ii) the procedure set out at Section 11(2) of the DAA failed.
Section 11 of the DAA does not expressly envisage a scenario where the arbitration agreement provides for a sole arbitrator but the parties do not jointly appoint an arbitrator within the 30-day time limit. However, it follows implicitly from the wording of Section 11(3) that, in such instances, either of the parties may solicit the assistance of the courts.
When acting as appointing authority, the courts must defer to the parties' arbitration agreement with respect to any desired qualifications, nationality requirements or other characteristics of the arbitrator(s) and must also ensure that the prospective arbitrators are impartial and independent.
In the case of proceedings conducted pursuant to the DIA Rules, the default number of arbitrators is one. In the event that the parties' agreed method for constituting the arbitral tribunal fails, the Chairman's Committee appoints the arbitrator(s) on behalf of the defaulting party(ies) (see Article 11(8) of the DIA Rules).