Board arbitration clauses bind an estate pursuing company liability claims

A bankruptcy estate was bound by arbitration clauses in two board members’ agreements when pursuing the company’s damages claims against them. In its judgment of 17 April 2026 in BS-49652/2025-HJR, Højesteret upheld the dismissal of the court proceedingsDomsdatabasen: the claims fell within the agreed arbitration clausesDomsdatabasen.

The company entered into the board agreements in June 2017, with the board chair signing on its behalf. The clauses covered disputes arising out of or in connection with the agreements, including their existence, validity or termination.Domsdatabasen They provided for Danish law and arbitration administered by Voldgiftsinstituttet. After the company entered bankruptcy in December 2018, the estate brought proceedings in November 2021 alleging liability for the board members’ performance of their duties under selskabslovens § 361, stk. 1.

Højesteret held that neither selskabsloven nor voldgiftsloven prevents a company and a board member from agreeing to arbitrate such company damages claims.Domsdatabasen Arbitration can be agreed unless circumstances or considerations make it objectionable.Domsdatabasen Here, the application of Danish law and the institute’s rules provided adequate procedural safeguards, and the court found no other circumstances making arbitration objectionable.

The estate also relied on selskabslovens § 364, stk. 1, which gives the general meeting the decision on bringing company proceedings against managementRetsinformation. Højesteret held that neither that provision’s wording nor its preparatory materials brings the making of an arbitration agreement within the general meeting’s competence. It expressly left open whether the clauses’ validity required general-meeting approval on some other legal basis. The judgment therefore does not resolve every possible approval requirement for a board agreement.

The decisive insolvency distinction was the origin of the claim.Domsdatabasen The estate was asserting the company’s rights against the directors under § 361, rather than a claim arising on bankruptcy or a right available exclusively to an estate. Liability could be assessed independently of the bankruptcy. The outcome did not change merely because the claim might relate to a transaction giving rise to avoidance proceedings, or to conduct when the company was or became insolvent.

For trustees and advisers, the judgment makes the board agreement and the legal basis of the proposed claim central to the forum assessment. Distinguish claims inherited from the company from powers belonging exclusively to the estate, and assess the clause’s scope and any objection to arbitration before bringing court proceedings. This judgment determined the forum for the disputeDomsdatabasen; it did not establish that the directors were liable for the alleged lossDomsdatabasen.

The legal basis is selskabsloven §§ 361, stk. 1, and 364, stk. 1, and voldgiftsloven §§ 6–8, as applied in Højesteret’s judgment BS-49652/2025-HJR.