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The award

Requirements
What legal requirements are there for recognition of an award? Must reasons be given for the award? Does the award need to be reviewed by any other body?

Belgian law provides that awards must be made in writing and signed by the arbitrator. In arbitral proceedings with a panel of arbitrators, the signatures of the majority of the members of the tribunal will suffice, provided that the reason for any omitted signature is stated (Article 1713(3)).

The award must be reasoned (Article 1713(4)). The absence of any reasoning is grounds for nullifying the award (Article 1717(3)(a) and (iv)).

Moreover, the award must contain:

  • the names and domiciles of the arbitrators;
  • the names and domiciles of the parties;
  • the object of the dispute;
  • the date on which the award was made;
  • the place of arbitration (as determined by virtue of the law) and the place where the award was made;
  • a decision on the case; and
  • a decision on the costs (Article 1713(5) and (6)).

Belgian law does not provide for a scrutiny procedure (apart from the possible appeal or setting aside of the proceedings). 

Timeframe for delivery
Are there any time limits on delivery of the award?

The law does not provide a time limit within which arbitral tribunals must make an award. In principle, the parties may determine a time limit or the terms for setting a time limit. In the absence of an agreement, if the arbitral tribunal is late in making its award and a six-month period has elapsed between the date on which the last arbitrator was appointed, the president of the court of first instance may impose a time limit on the arbitral tribunal, if so requested by one of the parties (Article 1713(2)).

Remedies
Does the law impose limits on the available remedies? Are some remedies not enforceable by the court?

This depends on the substantive law applicable to the dispute. Belgian procedural law does not limit the available remedies. However, certain remedies could be excluded by virtue of Belgian international public policy – for example, corporal punishment would be considered contrary to Belgian public policy. 

What interim measures are available? Will local courts issue interim measures pending constitution of the tribunal?

Unless otherwise agreed by the parties, the arbitral tribunal may order any interim or conservatory measures it deems necessary, except for conservatory attachments (Article 1691). Only the courts can authorise a conservatory attachment.

It is expressly provided that arbitral tribunals also have the power to amend, suspend or terminate an interim or conservatory measure (Article 1692) and that they may require the party requesting the measure to provide appropriate security (Article 1693).

Any interim or protective measure issued by an arbitral tribunal will be recognised as binding and, unless otherwise provided by the tribunal, enforced by the competent court of first instance, irrespective of the country in which the measure was issued. Recognition or enforcement may be refused only on limited grounds. The grounds for refusal of the recognition and enforcement of interim or protective measures are largely the same as those for the recognition and enforcement of awards on the merits, except in relation to the binding character of the award and where the arbitral tribunal has exceeded its powers. Additional grounds include where:

  • the arbitral tribunal’s decision regarding the provision of security has not been met; or
  • the interim or conservatory measure has been terminated or suspended by the arbitral tribunal or by the court of the state in which the arbitration took place or under the law of which the interim measure was granted.

The arbitral tribunal’s power to order interim or conservatory measures does not prejudice the powers accorded to the local courts regarding interim or conservatory measures (Article 1691). Under Belgian law, the parties can request that a local court take interim or conservatory measures before or during arbitral proceedings (Article 1683). In practice, it is difficult to obtain interim or conservatory measures in the local courts after the constitution of the arbitral tribunal.

Further, the law expressly provides that the local court holding summary proceedings must have the same power to issue an interim or conservatory measure in arbitration proceedings as it has in court proceedings. The local court should exercise such power in accordance with its own procedure, taking into account the specific features of arbitration (Article 1698). 

Interest
Can interest be awarded?

Belgian law does not prevent arbitrators from awarding interest. In principle, whether interest is due is based on the substantive law that applies to the dispute.

At what rate?

In principle, the rate of interest is based on the substantive law that applies to the dispute.

Finality
Is the award final and binding?

Awards are final and binding unless the parties have agreed to allow the right to appeal, and subject to the setting aside of the proceedings. 

What if there are any mistakes?

The law provides for a procedure to correct an award which contains errors in calculation, clerical or typographical errors or any errors of similar nature. The arbitral tribunal may correct these errors on its own initiative within one month of the date of the award. Moreover, within one month of receipt of the award (unless otherwise agreed by the parties), a party may request the arbitral tribunal to correct an error. If the arbitral tribunal considers the request justified, it should correct the award within one month of receipt of the request (Article 1715). 

Can the parties exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?

Yes, if the parties have provided for this possibility in the arbitration agreement (Article 1716).

If none of the parties is a natural person of Belgian nationality, a natural person having his or her domicile or normal residence in Belgium or a legal person having its registered office, its main place of business or a branch office in Belgium, the parties may – by an explicit declaration in the arbitration agreement or by a later agreement – exclude any application for setting aside the arbitral award (Article 1718).

Appeal
What is the procedure for challenging awards?

If an award can no longer be contested before the arbitrators, it may be contested before the court of first instance by means of a writ of summons (Article 1717(1) and (2)).

An application to set aside an award may not be made after three months have lapsed from the date on which the party making the application received the award. An arbitral tribunal’s decision that it has jurisdiction may be contested only alongside an award on the merits and in the course of the same procedure (Article 1690(4)).

When asked to annul an award (where appropriate and if so requested by a party), a court may suspend the setting-aside proceedings in order to give the arbitral tribunal time to resume the arbitral proceedings or to take any other actions that will eliminate the grounds for setting aside (Article 1717(6)).

On what grounds can parties appeal an award?

The right to appeal exists only if the parties have provided for this possibility (Article 1716). The law contains no grounds to appeal an award.

An award can be set aside only if:

  • the party making the application can prove that:
    • a party to the arbitration agreement was under some incapacity, the arbitration agreement was invalid under the law chosen by the parties or, failing any such indication, under Belgian law;
    • due process was violated (except if it is established that the irregularity had no effect on the arbitral award);
    • the award relates to a dispute not provided for in the arbitration agreement or contains matters beyond the scope of the agreement (with the power to partially set aside an award if the relevant part of the award can be separated);
    • the award is not reasoned;
    • the composition of the tribunal or the proceedings were not made in accordance with the parties’ agreement or, failing such agreement, conflicted with Part VI of the Judicial Code (except if it is established that the irregularity did not affect the award); or
    • the tribunal exceeded its powers; or
  • the court of first instance (ex officio) finds that:
    • the subject matter of the dispute cannot be arbitrated;
    • the award is in conflict with public policy; or
    • the award was obtained by fraud.

However, if the party learns of the following reasons during the course of proceedings but fails to address them at that time, the award will not be set aside:

  • a party to the arbitration agreement was under some incapacity, the arbitration agreement was invalid under the law chosen by the parties or, failing any such indication, under Belgian law;
  • due process was violated (except if it is established that the irregularity had no effect on the arbitral award);
  • the award relates to a dispute not provided for in the arbitration agreement or contains matters beyond the scope of the agreement (with the power to partially set aside an award if the relevant part of the award can be separated); or
  • the composition of the tribunal or the proceedings were not made in accordance with the parties’ agreement or, failing such agreement, conflicted with Part VI of the Judicial Code (except if it is established that such an irregularity did not affect the award) (Article 1717(4)).

Enforcement
What steps can be taken to enforce the award if there is a failure to comply?

Belgium is a creditor-friendly country to the extent that it is relatively easy to proceed to a conservatory attachment on the basis of a foreign arbitral award.

A party can apply to enforce a foreign or local award only if the award can no longer be contested before the arbitrator(s) or where it is declared provisionally enforceable (Articles 1719-1720).

An application to enforce an award must be introduced and dealt with by a unilateral request (Article 1720(3)) and must contain the original copy or a certified copy of the award and the arbitration agreement (Article 1720(4)).

Can awards be enforced in local courts?

Only the courts of first instance in locations which also have courts of appeal can enforce arbitral awards (Article 1720(2)). Therefore, only five courts can grant exequaturs.  

How enforceable is the award internationally?
 

As Belgium is a party to the New York Convention, in principle Belgian awards are enforceable under the New York Convention. 

To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

Subject to the application of mandatory supranational and international law, any foreign state’s assets located in Belgium are exempt from attachment. By way of derogation, a creditor that has an enforceable title or private or authentic deed can request an authorisation from the attachment judge in order to attach a foreign state’s assets if it can demonstrate that:

  • the foreign state explicitly and specifically agreed that the particular asset could be attached;
  • the foreign state reserved or appointed the particular assets for the payment of the claim that is the subject of the enforceable title or the private or authentic deed; or
  • those particular assets are used or meant to be used by the foreign state for other than non-commercial governmental purposes.

This immunity (and the related exceptions) also applies to the assets of a region of the foreign state, a territorially decentralised administration and any other political subdivision of the foreign state (Article 1412quinquies). 

Are there any other bases on which an award may be challenged, and if so, by what?

The grounds for refusal of the recognition or enforcement of an award are limited to those listed in Article 1721(1), including where:

  • the party against which the award is invoked can prove that:
    • a party to the arbitration agreement was under some incapacity, the arbitration agreement was invalid under the law agreed by the parties or, failing any such indication, under the law of the country where the award was made;
    • due process was violated (except if it can be established that the irregularity had no effect on the arbitral award);
    • the award relates to a dispute not provided for in the arbitration agreement or contains matters beyond the scope of the agreement (with the power to recognise or enforce an award partially, if the relevant part of the award can be separated from the rest);
    • the award is not reasoned (if such reasons are prescribed by the rules of law applicable to the arbitral proceedings);
    • the composition of the tribunal or the proceedings were not made in accordance with the parties’ agreement or, failing such agreement, conflicted with the law of the country where the arbitration took place (except if it is established that such an irregularity did not affect the award);
    • the award is not yet binding or has been set aside by a court of the country where or under the law of which it was made; or
    • the tribunal exceeded its powers; or
  • the court of first instance (ex officio) finds that:
    • the subject matter of the dispute is not capable of settlement through arbitration; or
    • the recognition or enforcement of the award would be contrary to public policy.

How enforceable are foreign arbitral awards in your jurisdiction?

Foreign arbitral awards are fairly easy to enforce, as Belgium is a party to the New York Convention. Moreover, Belgian law does not distinguish between local and foreign awards. 

Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?

Under the former legal regime, the Belgian courts would enforce awards that had been set aside at the place of arbitration. Belgian law now provides that a court can refuse to recognise or enforce an award only if the award is not yet binding or has been set aside (Article 1721(1)(a)(vi)).  

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