New rules on the taking of evidence for arbitration cases seated in Denmark

In response to the evolving landscape of arbitration, especially in relation to international and more complex arbitration cases, where inspiration from abroad has had a noticeable impact on arbitration cases seated in Denmark, the DAA has introduced updated Rules on the Taking of Evidence in Arbitration ("the 2025 Rules") effective as of 1 March 2025. These new rules replace the previous 2010 edition ("the 2010 Rules"). The 2025 Rules are intended to be a best practice set of rules and tools for practitioners in relation to the taking of evidence.

The 2025 Rules can be found here: link

In the following, certain main changes to the DAA's rules on the taking of evidence are discussed.

Article 1.1 has been revised regarding the Rules' scope of application. Under the 2010 Rules, where this had not already been agreed by the parties, Article 1.1 provided the tribunal discretion to decide whether to apply the Rules wholly or partially. 

More specifically, Article 1.1 in the 2025 Rules now explicitly details the tribunal’s and the parties' discretion. It is now directly stated that the tribunal may decide that the Rules shall apply in whole or in part, or that the parties may alternatively agree, or the tribunal may decide to let the 2025 Rules serve as a guide. This revision provides tribunals and parties with express predictability and clarity, allowing for specific procedural management closely aligned with the circumstances and complexities of each arbitration case.

Previously, it was expressly set out in the 2010 Rules that the parties should present, as soon as possible and well in advance of the conclusion of the pre-hearing proceedings, all documents on which the parties intended to rely. Now, the 2025 Rules merely stipulate that the parties shall submit the documents they intend to rely on in the arbitration. 

In accordance with international arbitration, the DAA's rules on the taking of evidence allow for a procedure of document production, as the tribunal may order a party to disclose documents which are in the possession of this party and which the requesting party intends to rely on. In the 2025 Rules, the process for requesting any production of documents has been clarified in the Rules. 

As per regular procedural principles, Article 2.4 in the 2025 Rules stipulates that the party to whom the request for production of documents is addressed shall be given reasonable opportunity to raise any objections to the production in whole or in part of the requested documents. Article 8.4 in the 2025 Rules specifies the grounds on which objections to production of documents must be primarily justified. In the 2025 Rules, these grounds listed in Article 8.4 have been further clarified. For instance, where the 2010 Rules merely stipulated one of the grounds for objection being that the evidence is subject to confidentiality that the tribunal considers compelling, the 2025 Rules now adds that this ground of objection also includes trade secrets or other sensitive material of commercial importance. 

Article 2.7 in the Rules regulates the cases where the justification of an objection to production can be determined only by review of the requested document(s). In both the 2010 Rules and the 2025 Rules, Article 2.7 allows the tribunal to appoint an independent and impartial expert to review such documents and objections. However, in the 2025 Rules, this process has been further clarified. Among other things, it now follows that the tribunal shall determine the scope of the expert's task and that the expert shall not disclose to the parties and tribunal the content of the documents reviewed while the tribunal, moreover, shall not itself review the documents to assess the justification of an objection.

The 2010 Rules merely provided that the tribunal may invite each party to present written witness statements. Now, Article 3.2 in the 2025 Rules stipulates that the tribunal may "order" a party to submit written witness statement(s) from the witness(es) whose testimony the Party wishes to rely on.

Moreover, Articles 3.4 and 3.5 in the 2025 Rules introduce certain modifications to the procedural rules for oral testimonies from witnesses. These modifications raise the importance and sufficiency of written witness statements in the arbitration case. 

The 2010 Rules stipulated that, unless otherwise agreed by the parties, each witness who submitted a written witness statement should appear and give oral testimony before the Arbitral Tribunal. This starting point has been inverted in the 2025 Rules, meaning that Article 3.4 now stipulates that a witness who has given a written statement shall only testify at the oral hearing at the request of a party or if the tribunal, in exceptional circumstances, decides on the matter. 

Additionally, Article 3.5 now provides an express basis for the tribunal to decide that, in the absence of a written witness statement from a witness, the tribunal may, on its own initiative or at the request of a party, order the relevant party to state, prior to the oral hearing, the material themes of the witness testimony.

Similarly to the procedural rules for oral evidence from witnesses (described above), the starting point for the party-appointed experts' oral testimonies has been inverted in Article 4.3 in the 2025 Rules, meaning that a party-appointed expert who has submitted an expert report shall only testify at the oral hearing at the request of a party or if the tribunal, in exceptional circumstances, decides that oral evidence shall be given. The 2010 Rules stipulated that, unless otherwise agreed by the parties, the party-appointed expert should appear and give an oral statement before the Arbitral Tribunal.   

Article 4.5 in the 2025 Rules introduces express provisions for a joint supplementary expert conference, i.e., similar to the practice known as "hot-tubbing"; a feature which was not addressed in the 2010 Rules. The Rules now stipulate that the tribunal may decide that party-appointed experts who have prepared expert reports on the same or related issues and who are to testify individually at the oral hearing shall be questioned together in a subsequent supplementary expert conference at the oral hearing. Here, the party-appointed experts provide evidence concurrently and address questions in parallel. 

With the 2025 Rules, Article 7 introduces a new provision explicitly permitting oral hearings to be conducted by means of telecommunications, thus introducing an explicit and direct basis for the tribunal to decide, if deemed appropriate, that (parts of) an oral hearing shall be conducted virtually, if this is requested by a party. This provision confirms procedural flexibility, aligning with broader global arbitration trends in an increasingly digital environment.  

Overall, it can be recognised that the updates to DAA's rules on the taking of evidence certainly adopt aspects of the practical handling and conduct currently practiced in international and more complex arbitration cases seated in Denmark, where inspiration from abroad has had a noticeable impact.  

In practice, an important modification to the application of the DAA's Rules is Article 1.2, which stipulates that in case of conflict between the Rules and any institutional rules for the conduct of arbitration adopted by the parties, the DAA's Rules apply only to the extent they do not conflict with the institutional rules adopted by the parties, unless otherwise agreed by the parties. Such institutional rules could be the Rules of Arbitration of the Danish Institute of Arbitration or the Arbitration Rules of the SCC Arbitration Institute. 

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