On March 19, 2024, the Danish Building and Construction Arbitration Board has published Practice Note II on expedited decisions/warrant decisions at the Arbitration Board.

The practice note concerns the possibility of fast-track decisions introduced with the new AB system (bet. 1570/2018), which entered into force on January 1, 2019. The rule on expedited decisions is found in AB 18 §68, ABT 18 § 66 and ABR 18 § 62, respectively. The purpose of the provisions is to provide the parties with a faster and cheaper process, avoiding lengthy and costly arbitration proceedings and allowing the construction project to proceed more quickly.

In continuation of this, the Arbitration Board also prepared the "Rules for expedited decision 2018", which the Arbitration Board refers to in the practice note as the "Process Rules".

The practice note provides statistics for the expedited decisions, showing that as of March 19, 2024, 173 cases have been filed, of which 100 have been concluded by expedited decision. The remaining cases are either still pending, referred to ordinary arbitration, withdrawn or dismissed. Of the 100 completed cases, 24 have subsequently been referred to the Arbitration Board.

In addition, it appears that the average case processing time for cases that are either concluded by a quick decision or referred to ordinary arbitration is 49 working days after the case has been filed, i.e. about 2½ months. This sounds relatively fast, although it cannot be ruled out that the inclusion of cases referred to ordinary arbitration in this calculation may have had a (positive) influence on the result, as it must be assumed that a case is referred to arbitration relatively quickly if it is not deemed suitable for expedited resolution.

Notwithstanding this, however, it is certainly positive that the case processing time can be kept so short when, according to the website of the Arbitration Board, the time for a general arbitration case before the Arbitration Board in 2022 was 21 months (however, only 16 months for cases without an expert opinion, but 26 months for cases with an expert opinion). However, it is worse at the ordinary courts, where, according to the courts' website, a civil case of one court day duration at the court in Horsens is scheduled for 20-24 months (and at the court in Glostrup, the scheduling times for civil cases are not disclosed at all).

The practice note also refers to a number of the Board's - primarily procedural - decisions, which are not published in the legal journals and are therefore worth reading if you work with fast decisions. For decisions of a substantive nature, the Arbitration Board refers to the individual more fundamental decisions published in the legal journals.

As an example of the referenced procedural decisions, see the decision of May 18, 2022 in O-74, where an adcitation was rejected, cf. section 13(1) of the procedural rules, cf. section 3(1), as there had been no attempt at negotiation between the adcitator and the adcitressee according to the rules in AB18 section 64(1) and (2) - which is also a new initiative with the new AB rules. See also the decision of June 14, 2022 in O-74 and the decision of August 15, 2022 in O-89, which reached the same result.

It is also worth familiarizing yourself with the referenced decisions regarding dispute categories, which provide an insight into the types of disputes that can be considered covered by AB 18 § 68(1) (and correspondingly ABT 18 § 66(1) and ABR 18 § 62(1)) and thus can be subject to quick decisions. Among other things, there are examples of disputes regarding contract interpretation (decision of November 30, 2022 in O-104) and compensation for lost contribution margin (decision of January 8, 2021 in O-31) not being covered. Also, disputes about daily penalties, master schedule or acceleration are not covered, as this concerns "thebasis for or measurement of any compensation", cf. decision of October 5, 2021 in O-44.

In addition, reference is also made to procedural decisions regarding the adoption of AB 18, pending cases on the same dispute and later expansion with a new dispute. Reference is also made to decisions regarding formalities such as requirements for the actual request for a quick decision, formulation of the claim, possibility of cumulation, presentation of evidence, referral to general arbitration, etc.

The practice note is thus a practical tool for working with the quick decisions, which must still be considered a new initiative in Danish law. With these decisions (albeit only summaries), both lawyers and parties in the construction industry gain an insight into how the Arbitration Board perceives the rules in question, which hopefully can reduce cases that are rejected for procedural reasons. The practice note also contributes to the visibility of the possibility of quick decisions, which may increase interest in and use of the possibility of quick decisions.