Use the Lexology Navigator tool to compare the answers in this article with those for 20+ other jurisdictions.
National arbitration laws
What legislation applies to arbitration in your jurisdiction?
The principal piece of legislation that applies to arbitration is Part VI (Articles 1676 - 1722) of the Judicial Code, as introduced by the Act of June 24 2013, which entered into force on September 1 2013. This act was amended by the Act of December 25 2016.
Are there any mandatory laws?
In principle, the parties are free to organise arbitral proceedings as they deem fit. However, the following articles of the Judicial Code apply irrespective of the place of arbitration and in spite of any clause to the contrary:
- Article 1682 (on exceptio arbitrandum);
- Article 1683 (on interim or conservatory measures in state courts);
- Articles 1696 to 1698 (on the recognition and enforcement of arbitral interim or conservatory measures);
- Article 1708 (on the taking of evidence in the courts); and
- Articles 1719 to 1722 (on the recognition and enforcement of arbitral awards).
New York Convention
Is your country a signatory to the New York Convention? If so, what is the date of entry into force?
Belgium is a signatory to the New York Convention, which entered into force on November 16 1975.
Are there any reservations to the general obligations of the convention?
Belgium applies the New York Convention only to the recognition and enforcement of awards made in another contracting state.
Treaties and conventions
What other treaties and conventions in relation to arbitration is your jurisdiction party to?
Apart from the New York Convention, the most important conventions to which Belgium is a party are:
- the Belgium-France Bilateral Agreement of July 8 1899;
- the Belgium-Netherlands Bilateral Agreement of March 28 1925;
- the Belgium-Germany Bilateral Agreement of June 30 1925;
- the Belgium-Switzerland Bilateral Agreement of April 29 1959;
- the Belgium-Austria Bilateral Agreement of June 26 1959;
- the European Convention on International Commercial Arbitration, signed on April 21 1961 in Geneva;
- the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, signed on March 18 1965 in Washington DC; and
- the Energy Charter Treaty of December 17 1994.
Belgium also signed the United Nations Convention on Transparency in Treaty-Based Investor-State Arbitration (known as the ‘Mauritius Convention’), but has not yet ratified it.
Has your jurisdiction adopted the UNCITRAL Model Law?
Part VI of the Judicial Code is based on the UNCITRAL Model Law, with some exceptions and amendments.
Are there any impending plans to reform the arbitration laws in your jurisdiction?
Part VI of the Judicial Code was reformed in 2013 and fine-tuned by the Act of December 25 2016.
What are the validity requirements for an arbitration agreement?
Belgian law contains no formal requirements for arbitration agreements. Arbitration agreements can be oral if proof of their existence can be established.
However, public legal entities may enter into arbitration agreements only if the arbitration is intended to resolve disputes relating to an agreement. The conditions that apply to the original agreement also apply to the arbitration agreement (Article 1676(3)).
Enforcement of agreements
How are arbitration agreements enforced in your jurisdiction? What is the attitude of the national courts towards arbitration agreements?
The Belgian courts are arbitration-friendly and will refer parties to arbitration unless:
- there is no proof that an arbitration agreement existed;
- one of the parties was incapable of entering into an arbitration agreement; or
- the subject matter of the dispute is not arbitrable.
The Supreme Court considers certain subjects which are governed by mandatory legislation (eg, the unilateral termination of exclusive distribution agreements for an undetermined period) to be non-arbitrable. However, this view is highly disputed, especially given the change in the definition of ‘arbitrability’ since the Supreme Court’s judgments in this regard.
Can an arbitral tribunal with its seat in your jurisdiction consolidate separate arbitral proceedings under one or more contracts, and, if so, in what circumstances?
Separate arbitral proceedings under one or more contracts can be consolidated to the extent agreed by the parties.
Choice of law
How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
The arbitrators should apply the rule of law chosen by the parties. If the parties have not designated an applicable law, the arbitrators should apply the conflict of law rules that they consider most appropriate (Article 1710(1) and 1710(2)).
An arbitrator can decide ex aequo et bono (ie, according to what is right and good) or as amiable compositeur (ie, according to legal principles that he or she believes to be just, without being limited to any national law) only if the parties have expressly authorised him or her to do so (Article 1710(3)).
Irrespective of whether the tribunal decides on the basis of rules of law, ex aequo et bono or as amiable compositeur, any decision must:
- be made in accordance with the terms of the contract, if the dispute between the parties is contractual in nature; and
- take into account the use of the trade, if the dispute is between commercial parties (Article 1710(4)).
Are there any provisions on the separability of arbitration agreements?
Article 1690 of the Judicial Code provides that for the purposes of determining jurisdiction – including any objections regarding the existence or validity of an arbitration agreement – the latter must be treated as independent from the other terms of the contract. Any arbitral tribunal which finds that a contract is null and void must not entail ipso jure (ie, by the operation of law) the invalidity of the arbitration agreement.
Are multiparty agreements recognised?
Criteria for arbitrators
Are there any restrictions?
Apart from the general requirements of independence and impartiality, no other restrictions apply.
What can be stipulated about the tribunal in the agreement?
The parties are free to determine any qualifications required of the arbitrator(s). The parties can preclude a person from acting as an arbitrator by reason of his or her nationality (Article 1685(1)).
Are there any default legal requirements as to the selection of a tribunal - for example, concerning the number of arbitrators or their characteristics?
The tribunal should consist of an odd number of arbitrators. A sole arbitrator is permitted (Article 1684(1)).
The arbitrator(s) must comply with the general requirements of independence and impartiality (Article 1685(2)).
Challenging the appointment of an arbitrator
Can the appointment of an arbitrator be challenged? Can an arbitrator be disqualified? What is the procedure for this?
The appointment of an arbitrator can be challenged if there are justifiable doubts as to his or her independence or impartiality, or if he or she does not meet the qualifications agreed on by the parties. The parties are free to agree on a procedure for challenging an arbitrator (eg, by referring to the rules of an arbitral institution) (Article 1687(1)).
If the parties do not agree on a procedure, the law provides that within 15 days of becoming aware of the constitution of the tribunal, or of becoming aware of the grounds for its challenge, the challenging party must send a written statement of the reasons for its challenge to the relevant arbitrator, any other arbitrators and the opposing party. Unless the arbitrator withdraws or the other party agrees to the challenge within 10 days of receiving the challenging statement, the challenging party must summon the arbitrator and the other parties within 10 days to appear before the president of the court of first instance. Pending a decision on the challenge, the arbitral tribunal – including the challenged arbitrator – may continue the arbitral proceedings and make an award (Article 1687(2)).
How should an objection to jurisdiction be raised?
An objection regarding the arbitral tribunal’s jurisdiction must be filed no later than the date on which the asserting party communicated its first written pleas (Article 1690). The law does not prescribe the form of such objection. For evidentiary reasons, the objection should be made in writing.
Replacement of an arbitrator
Why and how can an arbitrator be replaced?
An arbitrator can be replaced in all cases where his or her mandate is terminated before the final award is made. If an arbitrator becomes de jure or de facto unable to perform his or her functions or for other reasons fails to act without undue delay, his or her mandate will terminate when he or she withdraws from office (with the consent of the parties or with the authorisation of the president of the court of first instance). If controversy remains, the challenging party must summon the other parties and the relevant arbitrator before the president of the court of first instance (Articles 1688 to 1689).
Unless otherwise agreed by the parties, the appointment of a substitute arbitrator must be made in accordance with the same rules applicable to the appointment of the original arbitrator.
Powers and obligations
What powers and obligations do arbitrators have?
Failing an agreement between the parties, the arbitrators must:
- determine the rules of procedure (subject to Article 1700(2));
- determine the place and language of the arbitration (Articles 1701(1) and 1703(1));
- assess the admissibility and weight of the evidence (Article 1700(3)); and
- fix and allocate the costs of the arbitration (Article 1713(6)).
The arbitral tribunal must:
- hold a hearing if requested by a party, unless the parties have agreed otherwise (Article 1705); and
- give a written, signed and reasoned award within the time limit set by the parties or set by the court of first instance (at the request of a party) (Articles 1713).
The arbitrators have the power to:
- order any interim or conservatory measures that they deem necessary (Article 1691);
- establish the necessary investigative measures, hear any person (without an oath) and order the disclosure of evidence (Article 1700(4));
- rule on applications verifying the authenticity of documents and rule on allegedly forged documents (except for applications relating to authentic instruments) (Article 1700(5));
- order that any documentary evidence must have an accompanying translation (Article 1703(1));
- order a party to pay a penalty (Article 1713(7)); and
- correct any calculation, clerical or typographical errors or any errors of a similar nature on its own initiative within one month of the date of the award (Article 1715(2)).
Liability of arbitrators
Are arbitrators immune from liability?
Arbitrators can be held liable by the parties to the arbitration, as well as by third parties; however, in practice, such liability arises only in exceptional circumstances. Parties to arbitral proceedings can hold arbitrators liable for faults in making a decision on the basis of general contract law – for example:
- the tribunal was not independent or impartial;
- the decision violates the rights of the defence;
- the tribunal failed to respect an agreed term; or
- other faults in the decision (to the extent that it concerns a serious mistake which any other cautious arbitrator placed in the same circumstances would not have committed).
Third parties can hold an arbitrator liable on the basis of the general principles of tort (eg, in the event that the arbitral decision contains defamatory statements about that third party).
Communicating with the tribunal
How do the parties communicate with the tribunal?
The parties and arbitrators are free to determine the way in which they communicate. The law provides only that communications must be made in writing or in a manner that provides proof of sending. All communications should be delivered to all relevant persons’ domiciles, residences or email addresses (Articles 1677(1.2) and 1678(1)).
Is unanimous agreement of the tribunal required? If there is disagreement, does the will of the majority suffice? What are the implications of this?
In arbitral proceedings with more than one arbitrator, any decision must be made by a majority of the arbitral tribunal, unless otherwise agreed by the parties. The parties can decide that the chair’s vote is decisive where no majority can be reached (Article 1711).
Questions of procedure may be decided by the chair if so authorised by the parties.
Are there any disputes incapable of being referred to arbitration?
Pecuniary claims and non-pecuniary claims regarding which settlement agreement can be made may be submitted to arbitration (Article 1676). Other claims cannot be submitted to arbitration.
Further, there are limits on the right to submit disputes to arbitration by virtue of law or case law in relation to:
- disputes falling under the labour courts’ jurisdiction;
- insurance disputes;
- disputes regarding compulsory patent licences;
- consumer disputes;
- disputes regarding the unilateral termination of exclusive distribution agreements (however, a December 21 2016 Tournai Commercial Court judgment confirmed the arbitrability of disputes regarding the termination of an exclusive distributorship, since this type of dispute involves an economic interest);
- commercial agency disputes; and
- personal and family matters.
Can the arbitrability of a dispute be challenged?
The arbitrability of a dispute can be challenged before the arbitrators. Moreover, lack of arbitrability is grounds for annulment of the award (Article 1717(3)(b)(i)).
Jurisdiction and competence-competence
Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
The principle of competence-competence is recognised in Belgium. Article 1690 of the Judicial Code provides that the arbitral tribunal may rule on its own jurisdiction.
A party can ask the local courts to determine an issue relating to the arbitral tribunal’s jurisdiction. The court of first instance may, for example, rule on the merits of the arbitral tribunal’s decision that it lacks jurisdiction (Article 1690(4)).
Starting an arbitration proceeding
What is needed to commence arbitration?
Unless otherwise agreed by the parties, arbitral proceedings start on the date on which the application for arbitration was communicated in accordance with Article 1678(1) (Article 1702).
Are there any limitation periods for the commencement of arbitration?
From a Belgian perspective, prescription is a matter of substantive law. The Judicial Code does not as such provide for limitation periods for the commencement of arbitration proceedings. Claims filed in the context of arbitral proceedings will be time barred by virtue of the applicable substantive law.
The standard limitation periods under civil law are:
- 30 years for rights in rem;
- 10 years for personal and contractual claims; and
- five years for claims based on tort.
Are there any procedural rules that arbitrators must follow?
Arbitrators must comply with the procedural rules agreed by the parties. In the absence of such agreed rules, the arbitrators must determine the procedural rules.
In any event, the arbitrators must ensure that both the principle of adversarial proceedings and the principle of fairness of the debates are respected. Regardless of any agreement to the contrary, the parties must be treated equally and each party must be given a full opportunity to present its case, pleas and arguments (Article 1699).
Unless the parties agree that no hearings need to be held, the arbitrators must hold such hearings at an appropriate stage of the proceedings, if so requested by a party (Article 1705(1)).
Are dissenting opinions permitted under the law of your jurisdiction?
There is no unanimity on whether dissenting opinions are permitted under Belgian law. On the one hand, the secrecy of deliberations prevents an arbitrator from formulating a dissenting opinion. On the other, Article 1711(1) of the Judicial Code provides that an arbitral tribunal consisting of more than one arbitrator must decide by majority, unless the parties have agreed otherwise. However, Article 1711(3) adds that the parties can agree that if no majority can be obtained, the president has the decisive vote. Further, an arbitrator can refuse to join the deliberation or the decision-making process, in which case the other arbitrators can deliberate or decide without the dissenting arbitrator, as long as that they give the parties advance notice of their intention to do so (Article 1711(4)). This article does not prevent an arbitrator from stating the reasons why he or she refused to join the deliberation or decision. Hence, although Article 1711 does not expressly permit dissenting opinions, it does not prohibit them either.
Can local courts intervene in proceedings?
The local courts can intervene and assist at several stages of the arbitral proceedings in order to:
- appoint arbitrators (Article 1685(3) and Article 1685(4));
- rule on the withdrawal of an arbitrator (Article 1685(7)), on the challenge of an arbitrator (Article 1687(2)) and on an arbitrator’s failure or impossibility to act (Article 1688(2));
- set a time limit for an arbitrator to give his or her award (Article 1713(2)); and
- take all necessary measures to obtain evidence (Article 1708).
Can the local courts assist in choosing arbitrators?
On a party’s application, the president of the court of first instance can appoint an arbitrator where:
- a party fails to act as required under the appointment procedure;
- the parties or two arbitrators are unable to reach an agreement under the appointment procedure; or
- a third party (including an institution) fails to perform any function entrusted to it under the appointment procedure (Article 1685(4)).
What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration? Can the courts compel parties to arbitrate? Can they issue subpoenas to third parties?
The local courts can refer parties to arbitration but cannot compel them to participate in arbitration proceedings.
In the event of a non-cooperating respondent, the local courts or the relevant arbitral institution will appoint an arbitrator and the proceedings will be conducted in that party’s absence. If the respondent fails to communicate its statement of defence, the arbitral tribunal will continue the proceedings without treating such failure in itself as an admission of the claimant’s allegations (Article 1706(b)).
If the claimant fails to communicate its statement of claim, the arbitral tribunal will terminate the proceedings, without prejudice to handling any other party’s claims (Article 1706(a)).
If any party fails to appear at an oral hearing or produce documentary evidence, the arbitral tribunal may continue the proceedings and make the award on the existing evidence (Article 1706(c)).
The courts can direct orders to third parties in the context of taking evidence (Article 1708).
In what instances can third parties be bound by an arbitration agreement or award?
A third party can be bound by an arbitral agreement to the extent that the agreement contains a provision for the benefit of that third party. If the third party accepts this provision, it becomes a party to the agreement that was made in its favour. Other situations can result in a third party being assimilated with a signatory party and thus being bound by the arbitration agreement – for example:
- an insolvency administrator could be bound by an arbitration agreement made by the insolvent company; or
- the party to which an agreement containing an arbitration clause was assigned could be bound by the arbitration clause.
For a third party to be bound by an arbitral award, there should be an express or implicit contractual undertaking between the third party and a party to the arbitration proceedings which states that the third party will be bound by the arbitral award. For example, an insurer can be bound by an arbitral award between the insured and the other party ordering the insured person to pay to the other party.
Although an arbitral award has no authority of res judicata for third parties, it can be used against third parties. This function entails that an arbitral award has evidential value in relation to third parties regarding the factual and legal matters decided in the award (as it creates a refutable presumption of truth regarding the factual and legal matters set out in the award) and is something that they should respect.
Until recently, third parties aggrieved by an arbitral award could not oppose this award. With its February 16 2017 judgment, the Constitutional Court decided that the fact that Article 1122 of the Judicial Code (which provides that third parties negatively affected by a judicial decision can initiate third-party opposition proceedings against it) does not allow a third party that is negatively affected by an arbitral award to initiate opposition proceedings against that award, constitutes an unjustified discrimination. However, in the same judgment, the court held that it is not an unjustified discrimination that a third party aggrieved by an arbitral award can initiate a claim only to annul such decision in the event of fraud.
Default language and seat
Unless agreed by the parties, what is the default language and location for arbitrations?
In the absence of an agreement on the language of the proceedings, the arbitral tribunal will determine the language or languages to be used in the proceedings (Article 1703(1)).
Failing an agreement on the place of arbitration, the place will be determined by the arbitrators with regard to the circumstances of the case, including the parties’ convenience (Article 1701(1)). If the parties or the arbitral tribunal have not determined the place of arbitration, the place where the award is to be given will be deemed as the place of arbitration (Article 1701(2)).
How is evidence obtained by the tribunal?
The law provides that the arbitral tribunal will set the necessary investigative measures. The parties can entrust that responsibility to one of the arbitrators (Article 1700(4)). The law does not provide for an exhaustive list of measures to be granted to the arbitrators, but does set out certain rules regarding the power to:
- hear persons;
- order a party to disclose evidence (Article 1700(4)); and
- appoint and hear experts (Article 1707).
Although other measures such as site visits and inspections are not mentioned in the law, they are not excluded as investigative measures in the context of arbitration proceedings.
What kinds of evidence are acceptable?
The arbitrators must freely assess the admissibility and weight of the evidence presented to them, unless the parties have agreed otherwise (Article 1700(3)). The discretionary power of the arbitral tribunal is limited by the principle of adversarial proceedings and the principle of fairness of the debates (Article 1699). Documentary evidence, written and oral testimony and expert reports are most commonly used.
Is confidentiality ensured?
The law contains no provisions on confidentiality. The parties are free to agree on confidentiality and should do so or be subject to institutional rules providing for confidentiality if they wish to ensure confidentiality.
Can information in arbitral proceedings be disclosed in subsequent proceedings?
Belgian law does not prevent information in arbitral proceedings from being disclosed in subsequent proceedings. The parties are free to make agreements on this issue.
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
The arbitration law does not refer to ethical codes or professional standards. Legal counsel are bound by the rules of conduct of their bar association. The Belgian Centre for Arbitration and Mediation has issued Rules of Good Conduct for arbitrations. Moreover, reference is often made to international guidelines, such as the International Bar Association Guidelines on Conflicts of Interest in International Arbitration.
Estimation & allocation
How are the costs of arbitration proceedings estimated and allocated?
The law provides that in the final award, the arbitrators must fix the costs of the arbitration and decide which of the parties will bear these costs or in what proportion they will be borne by the parties. Unless otherwise agreed by the parties, these costs must include:
- the fees and expenses of the arbitrators;
- the fees and expenses of the parties’ counsel and representatives;
- the costs of services given by those in charge of the administration of the arbitration; and
- all other expenses arising from the arbitral proceedings (eg, costs for experts and court reporters) (Article 1713(6)).
In the context of institutional arbitration, the arbitrators’ fees are mostly set by the institution. In ad hoc arbitration, arbitrators are free to set their fees (unless otherwise agreed).
The other costs are generally demonstrated on the basis of invoices.
Security for costs
Can the national court or tribunal order security for costs under the law in your jurisdiction?
Contrary to Article 851 of the Judicial Code, Belgian arbitration law contains no general provision on security for costs. However, Article 1694 provides that the arbitral tribunal may order any interim measure that it deems necessary. Moreover, Article 1693 holds that the arbitral tribunal can impose a guarantee on the party requesting conservatory or interim measures. Finally, Article 1696(3) adds that the local court before which the exequatur of the conservatory or interim measures is being requested can impose a guarantee on the requesting party in the event that the arbitral tribunal has not yet decided on a guarantee and to the extent it is necessary for the protection of the other party’s rights.
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);
- 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)).
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).
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.
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 the communication of the award in accordance with Article 1678(1) (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).
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 award was communicated in accordance with Article 1678(1). 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)).
A third party initiating opposition proceedings against the decision on the enforceability of the arbitral award and wishing to have that award annulled, should, on pain of forfeiture, claim this nullity in the same opposition proceedings, to the extent that the three-month period has not yet lapsed (Article 1717(7)).
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)).
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 (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 (Articles 1680(6) and 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)).
Rules and restrictions
Are there rules or restrictions on third-party funders?
Belgian law does not contain specific regulations regarding the activities of third-party funders.
Class-action or group arbitration
Is there a concept in your jurisdiction providing for class-action arbitration or group arbitration? If so, are there any limitations to the arbitrability of such claims or requirements that must be met before such claims may be arbitrated?
Apart from the possibility of consolidating arbitration proceedings and organising multi-party arbitration, the concept of class arbitration is not developed in Belgium.
Are there any hot topics or trends emerging in arbitration in your jurisdiction?
The Part VI of the Judicial Code entered into force on September 1 2013 and the (small) modifications to it entered into force on January 9 2017. Therefore, it is still relatively new.
On July 1 2015 Parliament passed an act to combat vulture funds. The act limits a creditor's right to enforce an arbitral award against a foreign state when enforcement would result in an illegitimate advantage. This is achieved by limiting the creditor’s right to the price paid for the claim on the secondary market. ‘Illegitimate advantage’ is defined as a manifest disproportion between the price that the creditor paid on the secondary market and the nominal value of the debt instrument or between the price the creditor paid on the secondary market and the amount the latter claims from the debtor. Moreover, the law applies to the extent that one of the following criteria is met:
- The debtor state was insolvent, defaulted on payments or was about to be insolvent or default on payments at the time when the claim was acquired.
- The creditor is located in a listed state (generally tax havens).
- The creditor makes systematic use of judicial proceedings to recover purchased claims.
- The debtor state was subject to debt restructuring in which the creditor refused to participate.
- The creditor abused the debtor state’s weak position by entering into an unbalanced debt settlement agreement.
- Full payment of the amounts claimed by the creditor would result in a demonstrably unfavourable impact on the debtor state’s public finances and could jeopardise the social-economic development of its population.
In August 2015 Parliament enacted a new foreign sovereign immunity regime, limiting the right to enforce arbitral awards against foreign sovereign states. Unlike under the former immunity regime, the attachment court’s prior authorisation is required before any foreign state property can be attached. As state consent to assets being seized must be express and relate to specific assets, it appears that general immunity waivers are unenforceable in Belgium. This new regime goes beyond international law and has been criticised largely on the basis of the right to access to justice (Article 6 of the European Convention on Human Rights).