In a Danish arbitration, the arbitrator across the table may be a sitting judge of the Supreme Court. In much of the world, that sentence would raise questions and eyebrows. In Denmark, it describes established practice, and a distinctive way of approaching one of the field’s most persistent debates – arbitrator independence.
By Rubén Obadia Buenos, Argentine lawyer focused on international arbitration
The International Bar Association’s (IBA) Guidelines on Conflicts of Interest have become its common vocabulary, the double-hatting debate asks whether the roles of counsel and arbitrator can properly be combined, and a joint IBA project is examining how jurisdictions treat the sitting judge who acts as arbitrator.
A look abroad shows how unusual the Danish position is. Argentina forbids its judges from accepting appointment as arbitrators under penalty of nullity, unless the Nation or a province itself is a party. France declares judicial office incompatible with any other professional or salaried activity. Even the Members of the International Court of Justice (ICJ) have withdrawn from investment and commercial arbitration.
Across the North Sea, England lets an eligible High Court judge sit as sole arbitrator or umpire, though that one route remains rarely sailed by the English. The appointment requires the consent of the Lord Chief Justice, who looks to the state of business in the courts. The fees are taken by the court, which removes the financial incentive rather than regulating it, and the award may reach the Court of Appeal, where the hearing is public. When England lends a judge to arbitration, the court follows.
Much of the arbitration world turns instead to retired judges, who bring the experience of the bench but no longer sit on it. In the region, Sweden bars nothing and its judges may serve, though the practice is neither customary nor systematic. What makes the Danish model instructive is not that it exists but how it works.
Why Denmark can afford it
The Danish practice rests on two foundations. The first is trust. The Danish judiciary enjoys public confidence few countries can match, and Denmark has for years stood at the top of the World Justice Project Rule of Law Index. A party that meets a Danish judge does not wonder about the integrity of the office.
The second foundation is architecture. A party cannot simply engage a judge. Under the Administration of Justice Act (AJA), a sitting judge of any court may be appointed as arbitrator only through that court’s president. Parties and institutions may propose judges, but by express legislative intent a judge never sits on the nomination of one party alone. The president is not bound by the proposal either, weighing instead the nature of the case, the judge’s qualifications and availability, and whether the same parties or counsel have proposed the same judge too often. The president filters rather than selects.
The appointment is not the only filter. The judge’s earnings from secondary employment are capped by statute at half the salary of the office, averaged over three years. Every engagement is reported annually, with the income from each case, the procedure of appointment, and the names of counsel involved. The Bibeskæftigelsesnævnet oversees the scheme, and the reports are public for every court level. The practice is not an informal habit; it is a regulated institution.
The regulation of arbitration in Denmark dates back to 1683, when a single provision made the award binding and beyond appeal, with a reservation for the King. In 1981, the Association of Danish Judges was among the founders of the Danish Institute of Arbitration (DIA), where sitting judges traditionally serve as arbitrators. Moreover, the presidium of the Danish Building and Construction Arbitration Board has long been drawn from Supreme Court and High Court judges. The published reports show judges sitting in a substantial number of arbitrations each year. Against this backdrop, when the Danish arbitration community awarded its first Arbitrator of the Year prize in 2025, it went to Julie Arnth Jørgensen, a sitting Supreme Court judge.
A different kind of independence
Where international practice pursues arbitrator independence through codified rules, the sitting judge already embodies it. A sitting judge has no clients, cannot act as counsel, and does not depend on arbitral appointments for income. The judge therefore stands outside the role conflicts at the heart of the double-hatting debate and is structurally less exposed to the relationship conflicts mapped by the IBA Guidelines.
What holds the judge in check is the post and the law that frames it. Arbitration adds another layer. Once appointed, a judge is bound by the disclosure duty in section 12 of the Danish Arbitration Act. Under the DIA rules the judge signs the same declaration of impartiality and independence as every other arbitrator, and the DIA Chair’s Committee may withhold or revoke confirmation even when no party objects.
The Supreme Court in Inter Forsikring, U 1997.172 H, held arbitrators to a more lenient standard than judges, while the explanatory notes to the Arbitration Act treat the two as aligned. The sitting judge renders the debate academic, meeting the stricter standard by definition. The DIA’s published challenge decisions record a party objecting that all three arbitrators were practising lawyers and asking for a judge instead. No reported award has been set aside over a judge’s appointment.
The advantage is clearest where the judge’s nationality favours neither side, whether both parties are international or both Danish. The parties obtain court-grade independence with the confidentiality and finality of arbitration, and something no court offers, the ability to ask for the judge.
What the bench gains
The traffic is not one way. The committee report Betænkning 1465/2005 treated arbitral work as a benefit to the courts. Serving in arbitrations gives judges a broader understanding of commercial life and lets them develop the law beyond the courtroom. It even fosters recruitment, since a seat on the bench no longer confines a career, drawing able lawyers to the higher courts. Arbitration borrows the bench’s independence, and the bench gains experience and attracts candidates in return.
The limits of the model
Every design has a shape, and a shape has edges. Three stand out. The first is concentration. The earnings cap, the judge’s primary workload and the gatekeeping of the court president all restrict supply, and the work gathers in a few senior hands. Danish commentary has observed that when the cap reduced the pool of judges, appointments shifted towards practising lawyers, who are more exposed to conflicts of interest. Arbitrator challenges at the DIA rose over the same period from 2.35 to 8.62 per 100 cases.
The second is orientation. A domestic judicial career may incline a judge towards national procedure and precedent rather than the transnational practice expected by parties from different legal traditions, though some parties choose a judge precisely for such judicial rigour. The third is scope. Nothing in the statute confines the practice to commercial arbitration, but appointments cluster there, and no Danish judge is reported to have sat in an investment case.
The deepest objection is not practical but perceptual. A judge who arbitrates private disputes for a fee may seem to lend the office’s authority to private ends, risking the confidence on which the model rests. Denmark weighed that objection and designed a multi-layered system to safeguard it. The cap keeps arbitration secondary to the office, the disclosure keeps it visible, and the court president keeps it selective.
A wider ‘bench’ of arbitrators
Most jurisdictions meet the independence concern by keeping sitting judges out of arbitration. Denmark meets it by regulating how they come in, expanding the range of arbitrator profiles available to parties and adding a further layer of independence and expertise to a seat that can afford it. The model does not ask to be copied. Its preconditions, a trusted judiciary and an architecture refined over decades, are local. Its lesson travels nonetheless. Denmark offers a working demonstration rather than an argument. Elsewhere, a judge at the arbitral table could raise the independence question. In Denmark, the judge at the table answers it.
Rubén Obadia Buenos
Argentine lawyer focused on international arbitration, with experience in litigation and dispute resolution.
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Appointment, earnings, disclosure and oversight. AJA, Consolidated Act No. 1298 of 7/11/2025, sections 47a(3), 47b, 47c and 47d.
Comparative law. Argentina, National Code of Civil and Commercial Procedure, article 765. France, Ordonnance 58-1270, article 8. ICJ, address of the President to the UN General Assembly, 2018. England, Arbitration Act 1996, section 93 and Schedule 2. Sweden, Arbitration Act, section 7. ICCA International Handbook, National Reports for England and Wales (2020) and Sweden (2024).
Commentary. Tufte-Kristensen, J., & Pihlblad, S. (2016). Challenge Decisions at the Danish Institute of Arbitration. Journal of International Arbitration, 33(6), 577–651.








