Belgium Joost Verlinden Linklaters LLP Olivier van der Haegen 1 Arbitration Agreements 2 Governing Legislation 1.1 What, if any, are the legal requirements of an 2.1 What legislation governs the enforcement of arbitration agreement under the laws of Belgium? arbitration proceedings in Belgium? There are no formal requirements for an arbitration agreement to The provisions governing arbitration are incorporated in the Belgian be valid. Arbitration agreements can, for instance, result from an Code of Civil Procedure (Articles 1676–1722 CCP). exchange of faxes or letters. They can also be included in general conditions, but it must be clear from the circumstances that the 2.2 Does the same arbitration law govern both domestic general conditions were accepted by the other party. An oral and international arbitration proceedings? If not, how arbitration agreement is perfectly valid but if one of the parties do they differ? denies the existence of such an agreement, the other party will have to prove the intention of the parties to submit the dispute to Yes, the same provisions govern both domestic and international arbitration, which will usually require at least some sort of written arbitration proceedings. proof. However, in arbitrations in which all parties are non-Belgian, the Moreover, the arbitration agreement will only be binding if the parties can waive their right to initiate proceedings to set aside the substantial conditions for the validity of an agreement are met, award (Article 1718 CCP). such as the capacity of the parties and their valid consent to the Also, while the absence of reasoning in the award will be considered agreement. a ground to set aside or to refuse enforcement of the award rendered in Belgium (Articles 1713.4, 1717.3 and 1721.1 CCP), this ground 1.2 What other elements ought to be incorporated in an cannot be invoked to oppose enforcement of an award rendered in arbitration agreement? a foreign country where awards without reasoning are permitted (Article 1721.1 CCP). Although not required by law, it is a good idea to include the institution (if any), the method of appointment of the arbitrators, 2.3 Is the law governing international arbitration based the number of arbitrators, the language and seat of the arbitration, as on the UNCITRAL Model Law? Are there significant well as a choice of law clause. differences between the two? In the event that the parties did not incorporate these elements in their arbitration agreement, they can fall back on the Belgian Code The current Belgian arbitration law – adopted on 24 June 2013, of Civil Procedure (hereinafter, the “CCP”) which provides for which entered into force on 1 September 2013 and which is default rules on the conduct of the arbitration procedure. incorporated in the CPP – is largely based on and consistent with the UNCITRAL Model Law. The Belgian law transposed some of the 1.3 What has been the approach of the national courts to major improvements of the 2006 version of the UNCITRAL Model the enforcement of arbitration agreements? Law on interim and conservatory measures ordered by arbitral tribunals and the limited grounds for setting aside arbitral awards. As indicated under question 1.1, there are no formal requirements There are still some minor differences between the Belgian law for an arbitration agreement to be valid. and the UNCITRAL Model Law, the most important ones being The courts will, however, refuse the enforcement of an arbitration the exclusion of ex parte interim/conservatory measures, the agreement on limited grounds, e.g. if the arbitration agreement impossibility for the tribunal to amend, suspend or terminate such is invalid or terminated, was entered into by parties which had interim measures ex officio, the fact that parties in an arbitration no capacity to do so, relates to a type of dispute which is by sited in Belgium cannot agree that the award would not contain law considered to fall outside the scope of arbitration (“non- any reasoning, and the fact that both the absence of reasons and arbitrability”) or if the agreement would be contrary to public policy. the existence of fraud are additional grounds to set aside an award rendered in Belgium. 120 WWW.ICLG.CO.UK ICLG TO: INTERNATIONAL ARBITRATION Linklaters LLP Belgium 2.4 To what extent are there mandatory rules governing 3.2 Is an arbitrator permitted to rule on the question of his international arbitration proceedings sited in or her own jurisdiction? Belgium? Yes, the arbitral tribunal can rule on the question of its own Although the Belgian arbitration law provides a flexible framework jurisdiction, which also includes the competence to rule on the for conducting arbitration in Belgium, there are nevertheless some validity of the arbitration agreement (Article 1690.1 CCP). A mandatory provisions with which the parties to an arbitration plea that the arbitral tribunal does not have jurisdiction must be procedure with seat in Belgium would have to abide. These include raised in the first written submission in the arbitration. A party is the following: not precluded from raising such a plea by the mere fact that it has ■ the arbitration agreement and the applicable procedural appointed an arbitrator (Article 1690.2 CCP). rules cannot breach the principle of equal treatment between Article 1690.1 CCP also stipulates that an arbitration agreement parties and adversarial proceedings (Article 1699 CCP); contained in a contract which is found null and void does not ■ arbitrators must be independent, impartial and uneven in automatically become null itself (severability). number; and ■ the arbitral award must be in writing, reasoned and signed 3.3 What is the approach of the national courts in by a majority of arbitrator(s), although only the absence of Belgium towards a party who commences court reasons can constitute a valid ground to set aside the award. proceedings in apparent breach of an arbitration agreement? 3 Jurisdiction The national courts will decline to hear a case brought in breach of an arbitration agreement, provided that the other party invokes the 3.1 Are there any subject matters that may not be referred existence of a valid arbitration agreement in limine litis, i.e. before to arbitration under the governing law of Belgium? asserting any other defence (Article 1682.1 CCP). What is the general approach used in determining Even if a party seizes a court to oppose the jurisdiction of an arbitral whether or not a dispute is “arbitrable”? tribunal, the arbitral tribunal can proceed and hear the case (Article 1682.2 CCP). In principle, all claims of a pecuniary nature can be submitted to arbitration, as well as non-pecuniary claims on which parties are allowed to enter into a settlement agreement (Article 1676.1 CCP). 3.4 Under what circumstances can a court address the issue of the jurisdiction and competence of the However, the following disputes cannot be subject to arbitration national arbitral tribunal? What is the standard of (despite the fact that they are of a pecuniary nature or can be the review in respect of a tribunal’s decision as to its own subject of a settlement agreement) or can only be under certain jurisdiction? conditions: ■ Certain matters that fall within the jurisdiction of the labour The general rule is that the arbitral tribunal has the power to decide courts, such as those relating to employment contracts, on its own jurisdiction. Therefore, if a party brings a dispute that is cannot be subject to an arbitration agreement entered into subject to a valid arbitration agreement before the courts, the courts prior to the dispute (Article 1676.5 CCP). The same is true will decline jurisdiction at the request of a party that invokes the for disputes relating to certain insurance contracts. In both arbitration agreement (see question 3.3). cases, the parties cannot agree to submit future disputes to arbitration. However, once a dispute has arisen, they may Yet, if the arbitral tribunal decides that it has jurisdiction, this validly decide to subject it to arbitration. decision can be challenged before the national courts in proceedings to set aside the arbitral award. This challenge can only be made ■ There is a long-standing controversy over the arbitrability of disputes relating to the termination of exclusive at the end of the arbitral proceedings. By contrast, if the arbitral distributorship agreements of an indefinite duration that tribunal decides that it does not have jurisdiction over the dispute, cover all or part of the Belgian territory. As a general rule, this decision can immediately be challenged before the national an arbitration clause in such agreement will only be valid and courts (Article 1690.4 CCP). enforced if the arbitrators are contractually bound to apply The national courts can also address the issue of jurisdiction of the Belgian law. arbitral tribunal in the framework of opposition proceedings against ■ There are some limited exceptions to the general rule of an exequatur order (Article 1721.1 CCP) arbitrability for certain intellectual property disputes. The national courts will exercise full jurisdiction when reviewing ■ In the field of consumer disputes, the European Court of the issue of the tribunal’s jurisdiction. Accordingly, courts are not Justice has decided that an arbitration agreement may be bound by the decision of the arbitral tribunal in that respect. considered abusive (see e.g. ECJ 26 October 2006, Case C-168/05, Elisa Maria Mostaza Claro v. Centro Movil Milenium SL). 3.5 Under what, if any, circumstances does the national ■ Public law entities may only enter into an arbitration law of Belgium allow an arbitral tribunal to assume agreement if the purpose thereof is to resolve disputes jurisdiction over individuals or entities which are not relating to an agreement that pertains to matters defined by themselves party to an agreement to arbitrate? law or royal decree (Article 1676.3 CCP).