Arbitration Award
Court of First Instance
Court of Appeal Decision

In Ferrara v AG 1824 the Brussels Court of Appeal ruled out the application of Article 6(1) of the European Convention on Human Rights to voluntary arbitration. The court nevertheless stressed that arbitrators have a responsibility to ensure that the conditions of a fair trial are met.

Arbitration Award

A dispute occurred between an insured and an insurance company which had denied it cover on a claim. The insured started the arbitration proceedings required under the insurance policy and appointed an arbitrator. The insurance company appointed a second arbitrator, and the two arbitrators appointed a third arbitrator.

The arbitration panel dismissed the insured's claims. The insured then challenged the award before the Brussels Court of First Instance. According to the petitioner, the composition of the arbitration tribunal was irregular. It argued that the panel lacked impartiality, as all three members (including the arbitrator appointed by the insured) were attorneys mainly representing insurance companies in their day-to-day practice.

Further, as a result of a merger between two insurance companies, two of the arbitrators (including the arbitrator appointed by the insured) became regular counsel to the defendant insurance company after the award was rendered. According to the petitioner, these two arbitrators were aware of the imminent merger, so they were not independent of the insurance company.

Court of First Instance

The petitioner challenged the independence and impartiality of the arbitral tribunal. It requested that the award be set aside because of a violation of public policy and referred to Article 1704(2)(f) of Belgium's Code of Civil Procedure, which states that an award may be set aside "if it was rendered by an irregularly composed arbitral tribunal".

The court dismissed the claim, because Article 1704(5) of the code explicitly states that the grounds for challenging an arbitrator (lack of independence and impartiality) are not grounds for setting aside an award under Article 1704(2)(f), even if a party is made aware of such grounds after the award has been rendered.

Court of Appeal Decision

The petitioner raised new grounds before the Brussels Court of Appeal invoking Article 6(1) of the European Convention on Human Rights which states:

"In the determination of his civil rights and obligations, or of any criminal charge against him, everyone is entitled to a fair and public hearing within reasonable time by an independent and impartial tribunal established by law."

The court of appeal held that:

"the public policy character of the guarantees contained in Article 6(1) does not preclude parties to a dispute from waiving these guarantees by freely deciding not to submit the dispute to a court established by law, but rather to submit it to an arbitration tribunal, set up according to their agreement."

The court then stated that the arbitration tribunal had been established by the parties' will and not by law. Therefore, Article 6(1) did not apply.

However, after stating this principle the court stressed that:

"since the arbitrators obtained their powers by the parties' will, it is up to them to exhaust their own exclusive powers to judge and to ensure by themselves, under their own responsibility, the conditions of a fair trial, in accordance with the general and fundamental principles of our law and, as far as necessary, with the provisions of the convention."

The court of appeal dismissed the challenge on the basis that the petitioner could not claim that he had been unaware of the arbitrator's professional profiles until after the award was rendered.


This is the first decision rendered by a Belgian court which takes a clear position on the applicability of the European Convention on Human Rights to voluntary arbitration. Previous decisions had addressed the issue of compatibility of voluntary arbitration with Article 6(1), but failed to give a definite answer as to whether the convention was applicable.

The court ruling follows an opinion which is the subject of debate in Europe in general, and in Belgium in particular, according to which the convention imposes obligations on states and organs to which the power to judge has been delegated (state courts). This argument states that as an arbitration tribunal is not a state organ, it is not bound by the convention.

Legal scholars as well as foreign courts are divided on the issue of direct application of the European Convention on Human Rights to voluntary arbitration. Many authors defend the view that despite the requirement that the tribunal be 'established by law', set forth in Article 6(1) of the convention, this provision nevertheless applies to proceedings brought before a tribunal established by the parties' will. Some have even gone so far as to hold that, since voluntary arbitration is usually governed by statutory rules or by rules contained in international conventions signed by states, an arbitration tribunal must be deemed to have been established by law.

The Brussels Court of Appeal has rejected such a broad interpretation of the European Convention on Human Rights. However, the judgment's interest lies in the opinion that the principles of impartiality and independence set forth in Article 6(1) are so fundamental that, even without applying the convention as such, arbitrators have a responsibility to ensure that they are complied with.

Therefore, the decision confirms that parties to voluntary arbitration proceedings are afforded the guarantee and protection of a fair trial, even though they had decided by means of their arbitration agreement to waive their right of access to a state court.

For further information on this topic please contact Pascal Hollander at Hanotiau & Van Den Berg by telephone (+32 2 290 39 00) or by fax (+32 2 290 3939) or by email ([email protected]).