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Validity 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.
Consolidation 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)).
Separability 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.
Multiparty agreements Are multiparty agreements recognised? Yes.
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