When an international commercial dispute is arbitrated in Denmark, the tribunal must usually render its decision in accordance with rules of law. Having determined which (country’s) law applies to the merits, the arbitrators must then determine the content of that law. This article deals primarily with this contents-of-law question, specifically: the power of an arbitral tribunal in Denmark to ascertain and apply the applicable law independently, i.e. absent expression of the parties’ will.
When referring to this issue within the context of civil procedure, legal scholars in Denmark, as in many other jurisdictions, often employ the Latin adage, jura novit curia (the court knows the law), or da mihi factum, narro tibi jus (tell me the facts, and I’ll tell you the law). In this article, we use iura novit arbiter to describe the following powers of a Danish arbitral tribunal:
a) The tribunal’s power to make its own legal inferences from the factual basis established by the parties;
b) The tribunal’s power to apply the governing law to interpret, construe, supplement or correct the contract;
c) The tribunal’s power to apply the legal sources it deems applicable, even if not designated or pleaded by the parties; and
d) The tribunal’s power to order, independently from the parties’ pleadings, the remedies that follow from the sources of law the arbitral tribunal deems applicable.