Investment Treaty Arbitration in Belgium

Background

Foreign investment

What is the prevailing attitude towards foreign investment?

Belgium has adopted a positive attitude towards foreign (direct) investment that its economy is reliant upon. The federal state and the country’s three federated regions (Brussels, Flanders and Wallonia) actively seek to attract, increase and retain foreign investment. For example, the Belgian government has undertaken to reform the Kingdom’s company law and to gradually reduce the corporate income tax rates in 2018 and 2020.

What are the main sectors for foreign investment in the state?

Benefiting from its central geographic location in Europe, its highly developed transport network (including the port of Antwerp, Europe’s second-largest seaport), and Brussels being home to many European and international institutions, Belgium has attracted foreign investment across numerous sectors, notably agribusiness, aeronautics and space, environmental technologies, life sciences, engineering and new materials, transport and logistics, digital, finance, insurance and energy.

Is there a net inflow or outflow of foreign direct investment?

Historically, Belgium has been a capital-exporting country. While foreign inward direct investment reached an all-time high of US$30 billion in 2016, it dropped to US$801 million in 2017, mostly because of the ending of tax measures (such as the notional interest deduction and the dividend withholding tax exemption) aimed at attracting multinational enterprises rather than a fall in foreign investment projects. To this end, 2017 was the most prolific year for Belgium in a decade, with more than 200 new projects.

By contrast, foreign outward direct investment remained stable, from US$22 billion in 2016 to US$20 billion in 2017.

Investment agreement legislation

Describe domestic legislation governing investment agreements with the state or state-owned entities.

There is no domestic legislation specifically addressing investment agreements with the state or with state-owned entities. General principles of contractual and, potentially, administrative law will apply. Article 1676(3) of the Belgian Code of Civil Procedure expressly allows public entities to have recourse to arbitration with respect to agreements they conclude.

International legal obligations

Investment treaties

Identify and give brief details of the bilateral or multilateral investment treaties to which the state is a party, also indicating whether they are in force.

Belgium concluded about 100 bilateral investment treaties (BITs) between 1964 and 2010, most of them through the Belgo-Luxembourg Economic Union (BLEU) (see question 17). These BITs have mainly been concluded with countries that are not members of the Organisation for Economic Co-operation and Development (OECD). While most of the BITs remain in force today, about 20 did not enter into force and a further 10 were terminated (and sometimes replaced).

Almost every BIT contains a specific investor-state dispute settlement mechanism, usually refered to during:

• proceedings before an ad-hoc arbitral tribunal sitting under the United Nations Commission on International Trade Law (UNCITRAL) Rules;
• proceedings before the International Centre for Settlement of Investment Disputes (ICSID);
• proceedings before the International Chamber of Commerce (ICC); or
• proceedings before the Arbitration Institute of the Stockholm Chamber of Commerce (SCC).

Certain BITs require investors to seize (first, for a determined period of time) Belgian domestic courts.

For concluded BITs either by Belgium or through the BLEU, see: http://investmentpolicyhub.unctad.org/IIA/CountryBits/19.

As an EU member state, Belgium is also bound by investment treaties concluded by the European Union on behalf of its member states, such as the Comprehensive Economic and Trade Agreement (CETA) with Canada.

Belgium is also a party to the Energy Charter Treaty (ECT), which it signed on 17 December 1994 and which entered into force on 6 August 1998.

If applicable, indicate whether the bilateral or multilateral investment treaties to which the state is a party extend to overseas territories.

Belgium has no overseas territories.

Has the state amended or entered into additional protocols affecting bilateral or multilateral investment treaties to which it is a party?

Except for the Protocol on Energy Efficiency and Related Environmental Aspects of 1994 and the amendment to the trade-related provisions of the Energy Charter Treaty of 1998, Belgium has not entered into any protocol or amendment affecting investment treaties to which it is a party.

Has the state unilaterally terminated any bilateral or multilateral investment treaties to which it is a party?

Belgium has neither unilaterally terminated nor denounced any investment treaty since the second world war. However, Bolivia and South-Africa denounced the BIT (respectively in 2013 and 2014) they had entered into with the BLEU; however, they contained a sunset clause granting protection to investors for a period of 10 years following termination.

A few BITs were terminated because they were replaced by renewed BITs between the relevant states.

Has the state entered into multiple bilateral or multilateral investment treaties with overlapping membership?

BITs concluded by the BLEU with states outside the European Union overlap with investment treaties concluded by the latter. By virtue of Regulation (EU) No. 1219/2012, such BITs remain in force and in parallel but the European Commission has the power to indicate appropriate measures to be taken by Belgium and the BLEU if it considers that an existing BIT constitutes a serious obstacle to the negotiation or conclusion of EU investment treaties.

Furthermore, with regard to the energy sector, Belgium is part of the Energy Charter Treaty (ECT) that overlaps with many BITs entered into by Belgium with other ECT contracting states. Under article 16 of the ECT, nothing in the Treaty shall be construed as derogating from any BIT provision and nothing in the BITs shall be construed as derogating from any provision of the ECT ‘where any such provision is more favourable to the Investor or Investment’.

The BITs concluded by the BLEU with other EU member states (Croatia, Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Romania, Slovakia and Slovenia) are considered by the European Commission and the Court of Justice of the European Union (CJEU) as overlapping with EU law, in particular, with the fundamental freedoms of the internal market. In its recent ground-breaking Achmea ruling, the CJEU has ruled that the investor-state arbitration mechanisms of intra-EU BITs are incompatible with the principle of autonomy of EU law. As a result, the European Commission has requested that EU member states terminate their intra-EU BITs and indicates that it considers that the investor-state dispute resolution mechanism contained in the ECT cannot be applied to intra-EU disputes. Belgium’s position remains to be seen but it is likely to abide by the European Commission’s interpretation of the CJEU’s decision (see Update and trends).

ICSID Convention

Is the state party to the ICSID Convention?

Belgium is a party to the ICSID Convention 1965, which has been in force since 26 September 1970. The Minister of Foreign Affairs has been designated by Belgium as the competent authority for the recognition and enforcement of arbitral awards rendered pursuant to the Convention.

Belgium has neither excluded any territories nor has it made any notification concerning a class of disputes that it would or would not consider submitting to the jurisdiction of the ICSID. It has not designated any constituent subdivisions or agencies as possible parties to an ICSID dispute.

Mauritius Convention

Is the state a party to the UN Convention on Transparency in Treaty-based Investor-State Arbitration (Mauritius Convention)?

Belgium has signed the Mauritius Convention on 15 September 2015 but has not yet ratified it.

Investment treaty programme

Does the state have an investment treaty programme?

In 2009, by virtue of the Lisbon Treaty, the external trade policy became an exclusive competence of the European Union, which means that, in principle, EU member states have been precluded from entering into new BITs since then. Before this date, Belgium had concluded approximately 100 BITs, most of them through the BLEU.

Pursuant to Regulation (EU) No. 1219/2012, EU member states may seek the European Commission’s authorisation to conclude new BITs with third countries. Belgium has not done so to date.

Regulation of inbound foreign investment

Government investment promotion programmes

Does the state have a foreign investment promotion programme?

The three Belgian regions are competent to attract and promote foreign investment in Belgium, designing and implementing their own policies. They have concluded several cooperation agreements, between themselves and with the federal state, to coordinate their actions.

Applicable domestic laws

Identify the domestic laws that apply to foreign investors and foreign investment, including any requirements of admission or registration of investments.

Belgian legislation does not distinguish domestic and foreign investments and does not require any authorisation specific to foreign investments. As such, there is no limit on foreign ownership in Belgium and both foreign and domestic investors are free to set up a business (subject to sector-related authorisations).

Relevant regulatory agency

Identify the state agency that regulates and promotes inbound foreign investment.

Belgium’s regions are responsible for regulating and promoting inbound foreign investment. Consequently, the Brussels Invest and Export, Flanders Investment and Trade, and Wallonia Export-Investment agencies are responsible for promoting inbound foreign investment for their respective region. A liaison unit for international investment exists, composed of government agency representatives from federal public services finances, foreign affairs and economy, and the Prime Minister’s office.

Relevant dispute agency

Identify the state agency that must be served with process in a dispute with a foreign investor.

BITs concluded by Belgium or the BLEU are usually silent on this point. The state agency should be identified on a case-by-case basis, taking into consideration the nature of the claim and the state entity involved. Under a cautious approach, notices should be served to the federal Prime Minister, the Minister of Foreign Affairs and the Minister of the Economy, as well as the relevant regional government.

Investment treaty practice

Model BIT

Does the state have a model BIT?

Yes. The 2002 BLEU Model BIT is usually offered by BLEU to the prospective third state for approval (see: http://investmentpolicyhub.unctad.org/Download/TreatyFile/2831).

BLEU was founded by the convention establishing an economic union between Belgium and Luxembourg, signed in Brussels on 25 July 1921. The purpose of this convention was to set up a regional economic integration organisation primarily based on a common external trade-investment policy, customs and excises union, and monetary union. Over time, the convention was adapted to accommodate the Benelux Economic Union, European Economic Community and European Union through the adoption of new protocols up to the negotiation of a new convention that entered into force in 2005.

Preparatory materials

Does the state have a central repository of treaty preparatory materials? Are such materials publicly available?

The preparatory materials of the treaties concluded by Belgium are archived with the Diplomatic Archives Service of the Ministry of Foreign Affairs. Such materials can be freely accessed if the relevant treaty is 30 years old or more, unless it is classified. If the treaty has been signed less than 30 years ago, an authorisation to consult the materials can be requested through an application to the management committee of the Ministry of Foreign Affairs.

The preparatory materials can be consulted on site at Rue des Petits Carmes, 1/5 B-1000 Brussels, Belgium.

Scope and coverage

What is the typical scope of coverage of investment treaties?

An investor is defined by the BLEU Model BIT (article 1(1)), and most BLEU BITs, as any natural person who is considered as a citizen of one of the contracting states (according to the legislation of that state) or any legal person constituted in accordance with the legislation of one of the contracting states and having its registered office in the territory of that state. Some BITs do not require the presence of a registered office, while a handful of them require the presence of business activity or residence. Subject to a couple of exceptions, the BLEU BITs do not foresee the possibility of a company controlled by an investor to be considered as an investor itself.

The BLEU Model BIT (article 2) defines investments as ‘any kind of assets and any direct or indirect contribution in cash, in kind or in services, invested or reinvested in any sector of economic activity’. It further provides a non-exhaustive list of protected investment: ‘a) movable and immovable property as well as any other rights in rem, such as mortgages, liens, pledges, usufruct and similar rights; b) shares, corporate rights and any other kind of shareholdings, including minority or indirect ones, in companies constituted in the territory of one Contracting Party; c) bonds, claims to money and to any performance having an economic value; d) copyrights, industrial property rights, technical processes, trade names and goodwill; e) concessions granted under public law or under contract, including concessions to explore, develop, extract or exploit natural resources’.

Finally, it makes clear that ‘changes in the legal form in which assets and capital have been invested or reinvested shall not affect their designation as “investments” for the purpose of this Agreement’. Most BLEU BITs contain this definition, although some of the listed items sometimes differ and part of the older BITs merely define investment as ‘any kind of asset’. A couple of BITs exclude certain fields and/or dealings with states (including state-owned entities) from their scope of application. Finally, a handful of BLEU BITs require investments to be made in accordance with national law or to have received prior written approval from the relevant state’s competent authorities.

Protections

What substantive protections are typically available?

The BLEU Model BIT (and most BLEU BITs) grants investors protection in the articles that follow:

• fair and equitable treatment and continuous protection and security, with the exception of measures required to maintain public order (article 3);
• national treatment and most-favoured-nation treatment, with the exceptions of tax matters and privileges granted by one contracting state to investors of a third state by virtue of its participation or association in a regional economic organisation (article 4);
• prohibition of expropriation or nationalisation (or any other measure having the effect of directly or indirectly dispossessing investors of their investments), unless reasons of public purpose, security or national interest require a derogation; in which case, the measures must be:
• taken under due process of law;
• neither discriminatory nor contrary to any specific commitments;
• accompanied by provisions for the payment of an adequate and effective compensation, amounting to the actual value of the investments on the day before the measures were taken or became public (article 5); and
• free transfers of all payments relating to an investment (article 6); and
• umbrella clause (article 9).

Dispute resolution

What are the most commonly used dispute resolution options for investment disputes between foreign investors and your state?

The two investment arbitrations filed against Belgium reported to date have been conducted under the ICSID Rules and administered by the ICSID Secretariat. The BLEU Model BIT (article 10) allows investors to refer the arbitration to:

• an ad-hoc arbitral tribunal sitting under the UNCITRAL Rules;
• ICSID;
• the ICC; or
• the SCC.

Confidentiality

Does the state have an established practice of requiring confidentiality in investment arbitration?

No.

Insurance

Does the state have an investment insurance agency or programme?

Belgium established an official export credit agency, Office national du ducroire - Nationale Delcrederedienst, in 1939 (although its origins date back to 1921). This agency, rebranded as Group Credendo in order to underline its internationalisation, offers insurance to companies and financial institutions against ‘financial losses due to commercial failure or political events emanating from any public authority which can prevent the due performance of a contract or an investment’, including ‘confiscation, expropriation, nationalisation, requisition or destruction of the company’s assets; selective discrimination making your investment uneconomical; forced abandonment of the investment; forced divestiture of the shareholding interest; non repatriation of dividends, debt repayments or proceeds from a forced sale; arbitrary and unfair call of guarantees by a public sector buyer; non honouring of arbitration awards; equity and lenders in infrastructures projects’ (see: www.credendo.com/about/credendo-export-credit-agency). Credendo offers worldwide protection, which is not contingent to the existence of an investment treaty between Belgium and the host state.

Since 18 September 1992, Belgium has been a member of the Multilateral Investment Guarantee Agency, an international organisation that is part of the World Bank Group that offers political risk insurance and credit enhancement guarantees (see: www.miga.org/what-we-do).

Investment arbitration history

Number of arbitrations

How many known investment treaty arbitrations has the state been involved in?

To date, two investment arbitrations have been filed against Belgium.

The Ping An case (ICSID Case No. ARB/12/29) occurred in the context of the dismantling and nationalising of the Belgian-Dutch bank and insurance group Fortis by the Benelux states during the 2008 global financial crisis. The Chinese company Ping An Insurance, one of the world’s leading insurers and Fortis’ largest single shareholder at that time (holding almost 5 per cent of Fortis’ shares, acquired for a value of more than €2 billion), claimed - in substance - that the measures adopted by Belgium amounted to an illegal expropriation and a breach of the fair and equitable treatment and constant protection and security standards of protection. It was the first reported investment arbitration filed against Belgium and the first time that a mainland Chinese company turned to ICSID arbitration. Ping An’s claims relied on two BITs, the 1986 BLEU-China BIT (for the substantive provisions) and its successor, the 2009 BLEU-China BIT (for the jurisdictional provisions). On 30 April 2015, the arbitral tribunal dismissed Ping An’s claims on jurisdictional grounds, holding that the dispute arose before the entry into force of the 2009 BIT, which did not include the obligations under the 1986 BIT on which Ping An relied in formulating its claims (see: www.italaw.com/sites/default/files/case-documents/italaw4285.pdf).

The DP World case (ICSID Case No. ARB/17/21) is pending at the time of writing. The United Arab Emirates company, which held a 60 per cent indirect shareholding in a container terminal at the port of Antwerp, filed a notice of arbitration under the BLEU-United Arab Emirates BIT on 29 June 2017. The dispute relates to a decision of the Antwerp’s port authority to grant part of DP World’s concession to one of its competitors, Mediterranean Shipping Company. Pursuant to article 12(2) of the applicable BIT, the dispute should have been submitted to a Belgian domestic court or arbitration for a duration of at least 15 months. DP World filed a claim with the Belgian Centre for Arbitration and Mediation (CEPANI), but Belgium agreed to waive this obligation (‘in order to guarantee an efficient and less costly process, and to ensure legal certainty’) and the case was referred to ICSID arbitration (see: https://icsid.worldbank.org/en/Pages/cases/casedetail.aspx?CaseNo=ARB/17/21). The case was also discussed before the Belgian Parliament (see: https://www.lachambre.be/kvvcr/showpage.cfm?section=qrva&language=fr&cfm=qrvaXml.cfm?legislat=54&dossierID=54-b147-864-1299-2017201820607.xml).

Industries and sectors

Do the investment arbitrations involving the state usually concern specific industries or investment sectors?

The Ping An case concerned the banking and insurance sector while the DP World case concerned the transportation sector.

Selecting arbitrator

Does the state have a history of using default mechanisms for appointment of arbitral tribunals or does the state have a history of appointing specific arbitrators?

In the two investment arbitrations filed against Belgium reported to date, Belgium has appointed its arbitrators (Professor Brigitte Stern in DP World and Professor Philippe Sands QC in Ping An).

Defence

Does the state typically defend itself against investment claims? Give details of the state’s internal counsel for investment disputes.

In the two investment arbitrations filed against Belgium reported to date, Belgium has been represented by (different) external counsel. In principle, Belgium is represented before (non-EU) international courts and tribunals by the Direction Public International Law, within the Direction General Legal Affairs of the Ministry of Foreign Affairs.

Enforcement of awards against the state

Enforcement agreements

Is the state party to any international agreements regarding enforcement, such as the 1958 UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards?

Belgium is part to both the ICSID Convention of 1965, which entered into force on 26 September 1970, and the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention), which entered into force on 16 November 1975. Belgium has made a reciprocity reservation.

Award compliance

Does the state usually comply voluntarily with investment treaty awards rendered against it?

Belgium has not been defeated in a reported investment arbitration to date.

Unfavourable awards

If not, does the state appeal to its domestic courts or the courts where the arbitration was seated against unfavourable awards?

Not applicable.

Provisions hindering enforcement

Give details of any domestic legal provisions that may hinder the enforcement of awards against the state within its territory.

As a general rule, article 1412bis of the Belgian Code of Civil Procedure exempts from attachment and enforcement all assets belonging to the Belgian state (in the broadest sense, including the federated entities, the provinces, the municipalities, public interest agencies and public-law corporations). However, public entities are required to draw up a list of assets that can be attached. If they do not, or if the listed assets are not sufficient to satisfy the creditor’s claim, assets that are ‘manifestly not useful for the public entity’s mission or the continuity of public service’ can be attached by the creditor. In that case, the public entity may replace the attached assets by other assets of its choice (present on the Belgian territory and sufficient to satisfy the claim). If the public entity considers that the attached assets are useful for its mission or the continuity of public service, it may oppose the attachment before Belgian courts.

With respect to enforcement of awards against foreign states, Belgium has recently modified its rules on state immunity from enforcement by adopting the Act of 23 August 2015 inserting a new article 1412quinquies to the Belgian Code of Civil Procedure. Under this provision, foreign states’ assets located in Belgium cannot be subject to enforcement proceedings by creditors save for three narrow exceptions:

• the foreign state has expressly (and specifically) consented to the seizure of the assets;
• the foreign state has reserved or allocated the assets to the enforcement of the claim that gives rise to the seizure; or
• the assets are used for an economic or commercial activity (as opposed to a public service activity) and relate to the entity against which the enforceable title or authentic or private documents are addressed.

This Act is widely seen as a consequence of the diplomatic crisis caused by the launching of attachment and enforcement proceedings against Russia by former Yukos shareholders; in particular, the vehicle company Yukos Universal Ltd. In conjunction with a US hedge fund holding debt securities against Argentina, Yukos Universal Ltd filed an application against the new regime before the Belgian Constitutional Court. The applicants alleged that it breached the principles of equality and non-discrimination by imposing disproportionate hurdles to creditors of foreign states as compared to other types of creditors. The application was dismissed by the Constitutional Court in Decision No. 48/2017 of 27 April 2017. The Court considered that the difference in treatment:

• relied on an objective criterion (ie, the nature of the debtor);
  • was legitimated by the Act’s aim of fostering international comity; and
  • was proportionate because it reflects customary international law.

The court did, however, strike out, for the first exception, the requirement that the state must have specifically consented to the seizure, finding that this went too far as compared to customary international law.

Update and trends

Current developments

Are there any emerging trends or hot topics in your jurisdiction?

CJEU Achmea ruling

In its seminal Slovak Republic v Achmea ruling of 5 March 2018 (Case C-284/16), the CJEU held that the arbitration clause provided for by the 1991 Netherlands-Slovakia BIT was incompatible with the principle of autonomy of EU law because an arbitral tribunal ‘such as that referred to in article 8 of the [Netherlands-Slovakia BIT]’ may be called upon to interpret or apply EU law, particularly the provisions on freedom of establishment and free movement of capital while it cannot make preliminary references to the CJEU and, at the annulment and enforcement stages, is not subject to sufficient review by a court of a member state capable of ensuring compatibility with EU law.

In the wake of the Achmea ruling, the European Commission stated in a communication of July 2018 that: ‘all investor-State arbitration clauses in intra-EU BITS are inapplicable and that any arbitration tribunal established on the basis of such clauses lacks jurisdiction due to the absence of a valid arbitration agreement. As a consequence, national courts are under the obligation to annul any arbitral award rendered on that basis and to refuse to enforce it. member states that are parties to pending cases, in whatever capacity, must also draw all necessary consequences from the Achmea judgment. Moreover, pursuant to the principle of legal certainty, they are bound to formally terminate their intra-EU BITs. The Achmea judgment is also relevant for the investor-state arbitration mechanism established in article 26 of the Energy Charter Treaty as regards intra-EU relations’. Belgium is likely to abide by this interpretation of the consequences of the CJEU’s ruling.

Opinion 1/17

The existence of an Investment Court System (ICS) in CETA was one of the core reasons put forward by the Wallonia region for refusing to agree to the signature of the treaty by the Belgian government. In a nutshell, the ICS provides for a break from the ad-hoc arbitration system to a permanent and institutionalised court, whose members (subject to strict independence and impartiality requirements) are appointed in advance by the states that are party to the treaty (and a joint committee of these states) instead of being appointed on a case-by-case basis by the investor and the state involved in the dispute. The decision of this court is subject to appellate mechanisms, as opposed to traditional investment arbitration mechanisms which only provide for one instance on the merits.

The Wallonia region finally gave its agreement to the signature of the treaty, after intense political pressure, subject to an agreement that Belgium would refer the validity of the CETA’s ICS to the CJEU. As a result, on 6 September 2017, Belgium requested the CJEU render an opinion on the compatibility of the CETA’s ICS with EU law, in particular with:

• the exclusive competence of the CJEU to provide the definitive interpretation of EU law;
• the general principle of equality and the practical effect requirement of EU law;
• the right of access to the courts; and
• the right to an independent and impartial judiciary.

The Wallonia region specified that Belgium ‘does not take any position itself regarding [those] questions’ (request for an opinion submitted by the Belgian government pursuant to article 218(11) of the Treaty on the Functioning of the European Union (Opinion 1/17), OJ 369, 30 October 2017). Given its conclusions in Achmea, the CJEU may consider that the principle of the EU’s autonomous legal order would be breached if an international investment court were to provide for a binding interpretation of EU law without the possibility to refer the case for preliminary ruling to the CJEU.

The hearing before the CJEU took place on 26 June 2018. The Advocate General’s opinion is expected on 23 October 2018.