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1 Brussels

Pascal Hollander, Maarten Draye

From: Choice of Venue in International Arbitration

Edited By: Michael Ostrove, Claudia Salomon, Bette Shifman

Content type:
Book content
Product:
International Commercial Arbitration [ICMA]
Published in print:
09 January 2014
ISBN:
9780199655717

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 06 June 2023

Subject(s):
Arbitral rules — Arbitrators — Conduct of proceedings — Place of arbitration — Remedies and costs

(p. 15) 1  Brussels

1.1  Background

1.1.1  History and development of arbitration

1.01  Because of its central location in Europe, Brussels has played a leading role as an administrative hub throughout its history, a role it still enjoys today. Brussels is not only the capital of Belgium, but also of the European Union, and is home to the European Commission and a number of European administrative agencies and other international organizations, including NATO. Brussels has become a truly international city that attracts professionals from all over the European Union and beyond, and has, moreover, managed to position itself at the forefront of European business centres.

1.02  At the same time, in line with the evolution of arbitration worldwide, arbitration in Belgium has developed steadily since the second half of the twentieth century. A favourable climate for arbitration was created in 1972, with the implementation of a new legislative framework for arbitration that matched the needs of the business community. Belgian courts have supplemented this with a generally pro-arbitration stance. A complete revision of the arbitration (p. 16) law was adopted in June 2013 with the aim of making Belgium a more attractive place in which to arbitrate.

1.03  Particularly interesting from an international perspective is that—compared to arbitration hubs such as London or Paris—arbitrating in Brussels is generally more cost-effective. Moreover, parties without a connection to Belgium may opt out of judicial recourse for setting aside an arbitral award.

1.04  Against this background, Brussels has become an increasingly attractive venue for international arbitration proceedings.

1.1.2  Modern and recent developments

Legislative framework

1.05  The Belgian Law on Arbitration (BLA) is integrated into the Belgian Code of Civil Procedure (Code Judiciaire/Gerechtelijk Wetboek, hereinafter ‘BCCP’) as Chapter VI, entitled ‘Arbitration’.

1.06  Modern arbitration legislation was first introduced in Belgium in 1972, with the enactment of the model law annexed to the European Convention on International Commercial Arbitration of 20 January 1966. This law was revised and substantially reformed in 1985 and 1998, in the light of developments in other countries and the introduction of the UNCITRAL Model Law (which was not, however, adopted in full by Belgium).

1.07  In the light of an express policy to make Belgium a more attractive place for arbitratration, in 2013 the entire BLA was replaced by a modern and progressive new law. The new BLA largely adopts the UNCITRAL Model Law (as revised in 2006), but retains a number of provisions from the earlier versions of the BLA1 and adopts a number of solutions featured in other laws (in particular the French, German, and Swiss arbitration laws). It spans articles 1676 to 1722 of the BCCP.

1.08  Underpinning the BLA are the general principles of equality of the parties and due process, party autonomy, parties’ freedom to determine the arbitral procedure, and non-intervention by local courts. Particular efforts have been made to increase the efficiency and celerity of court support to arbitration proceedings.

1.09  The BLA applies to both domestic and international arbitrations with a seat in Belgium, unless—and to the extent that—the parties have, expressly or by reference to arbitration rules, excluded its application.2 With a few exceptions, the parties may by agreement deviate from the provisions of the BLA.3

1.10  Finally, Belgium is a party to the 1958 New York Convention, with the reciprocity reservation of Article I(3) (ie Belgium will only apply the Convention to recognize and enforce awards made in the territory of another contracting state), as well as the European Convention on International Commercial Arbitration of 21 April 1961. Both of these conventions entered (p. 17) into force in Belgium in 1975. Belgium has also adopted the Washington Convention on the Settlement of Investments Disputes (ICSID Convention), which entered into force in 1970.

Court system

1.11  Generally speaking, the Belgian court system provides for a three-tier system of dispute resolution: a first level of 27 courts of first instance, with a possibility of recourse before one of the five courts of appeal, and above that, limited review by a supreme court. In the interest of efficiency and specialization, however, the new BLA derogates from this general rule and has abolished appeals from court decisions related to arbitration proceedings. Moreover, the new BLA centralizes the competence to hear applications concerning arbitration proceedings before the five courts of first instance at the seats of the Courts of Appeal.4 Finally, for a number of issues, the BLA gives competence to the president of the Court of First Instance, who decides by means of fast-track summary proceedings.5 As a result, applications concerning arbitration must be brought before the Court of First Instance—or, as the case may be, its president—located at the seat of one of the five Courts of Appeal, whose decision will be final and not susceptible to further appeal.6

1.12  Specific and limited recourse against arbitration-related decisions from the Court of First Instance is available only before the Supreme Court (Cour de cassation/Hof van Cassatie).7 The Supreme Court will, however, review the case on points of law or compliance with fundamental procedural rules only and will not reassess the facts. If the Supreme Court finds that the Court of First Instance has violated provisions of law or fundamental rules of procedure, it will annul the judgment (or parts thereof) and send the case back to another Court of First Instance for full review.

1.13  Brussels is seat to various courts at first instance level as well as the seat of one of the five Courts of Appeal. The Supreme Court is located in Brussels. Consequently, applications relating to arbitration proceedings with a seat in Brussels should in principle be brought before the Court of First Instance of Brussels (Tribunal de première instance/Rechtbank van Eerste Aanleg).

1.14  Because their competence ratione loci in arbitration-related matters corresponds with the Court of Appeal of Brussels, and hence, includes the bilingual (French-Dutch) area of Brussels as well as parts of monolingual Dutch- and French-speaking areas of Belgium, the Court of First Instance of Brussels is unique in that it may hear cases in both French and Dutch. The choice between one language and the other is not, however, left to the parties’ discretion. The use of languages in court cases in Belgium is strictly regulated by the Law of 15 June 1935 on the Use of Languages in Court Proceedings (hereinafter ‘Law of 1935’), which is part of public policy. With some specific exceptions, the Law of 1935 sets forth a general rule of territoriality, providing that the language of the place where the competent court is situated determines the language of the proceedings. Given the bilingual status of (p. 18) Brussels, however, a special regime applies, whereby the language to be used is determined on the basis of the domicile of the responding party.

1.15  The Law of 1935 does not apply to arbitration proceedings in Belgium, in which the parties are free to choose any language for the proceedings.8 It does, however, apply to applications in relation to such proceedings before the Belgian courts. As indicated in the preceding commentary, the Court of First Instance of Brussels is competent to hear applications relating to arbitration proceedings with their seat in Brussels. If none of the parties resides or has its seat in Belgium, the parties are free to choose whether they wish to bring such proceedings in French or Dutch. If, however, the respondent resides in Belgium, the Law of 1935 may require that either Dutch or French be used, or may permit the party residing in Belgium to request a change of language (especially when that party is a natural person).

Popularity of and approach to arbitration

1.16  Arbitration is becoming increasingly popular as an alternative to court proceedings in Belgium, especially in international commercial contracts and business relationships. This is typically the case for disputes relating to cooperation and services agreements, transfers of shares, post-acquisition issues, commercial contracts (distribution, agency, franchising), and construction-related disputes.

1.17  The vast majority of domestic commercial disputes are still brought before the courts; however, as arbitration becomes better known among potential users, interest in its advantages is gradually increasing. In certain sectors (eg the travel sector, where an arbitration commission for consumer disputes has been set up by the government) arbitration has become the norm.

1.18  This evolution has been embraced and stimulated by both the government and the legislature, most notably with the unanimous adoption of a new state-of-the-art arbitration law in 2013. In its proposal to the Parliament, the government expressly indicated that: ‘By adopting the majority of the Model Law, often with the exact wording, in the BCCP, Belgium wishes to present itself as a country open to arbitration, in particular to international arbitration, and as a country with a progressive law on arbitration.’9 In addition, the government announced that it would actively promote the new BLA to possible stakeholders.10

1.19  While many arbitration proceedings in Belgium are conducted in either Dutch or French, the increase in arbitrations with an international element has led to a steady increase in the use of English as the language of arbitration in Belgium. The permitted use of English also explains why more and more domestic commercial disputes are arbitrated, as this is a neutral language when the parties come from different linguistic areas within Belgium.

1.20  The vast majority of arbitration proceedings with an international element take place in Brussels. The only other notable venue is Antwerp, where the presence of the Port of Antwerp gives rise to some arbitration of maritime and transport disputes. Brussels is also a popular choice for domestic arbitration proceedings, although other Belgian cities are chosen as the seat as well.

1.21  Generally speaking, Belgian courts have adopted a favourable approach to arbitration. As discussed in more detail in the following commentary, courts may act as appointing (p. 19) authorities, generally enforce arbitration agreements, and provide support before and during arbitration proceedings when needed. In addition, they usually apply grounds for the annulment of arbitral awards with moderation. It is to be expected that the clear and unequivocal pro-arbitration stance underlying the 2013 revision of the BLA, and the centralization of all arbitration-related disputes before the Courts of First Instance of Antwerp, Brussels, Ghent, Liège, and Mons will increase the efficiency of court support of arbitration proceedings taking place in Belgium.

1.22  Finally, an increased interest in arbitration can be also seen at the level of the Brussels bar. In 2010, the French-speaking section of the Brussels bar amended its professional and ethical rules to lift the traditional and long-standing ban on preparatory contact with witnesses for both domestic and international arbitration disputes. The Dutch-speaking section of the Brussels bar—which had already lifted this ban for international disputes—has since lifted this ban for domestic arbitration disputes as well. While in practice Belgian attorneys already engaged in preparatory contact with witnesses, this modification was welcome. Not only did it put the professional and ethical rules in line with international arbitration practice, and Belgian attorneys on a level playing field with their opponents from other jurisdictions, it also underlined and raised awareness among practitioners of the wider possibilities of taking oral evidence in arbitration as opposed to court. Indeed, the procedure for presenting oral evidence in Belgian courts is burdensome and inefficient (for instance, witnesses are examined by the judge, not by counsel, and no cross-examination is allowed). Furthermore, oral evidence is not admitted in civil disputes (save for a few exceptions). Hence, the use of oral evidence in civil or commercial court litigation is almost non-existent. Arbitration is therefore seen as an effective alternative, as it allows almost unrestricted use of oral evidence if the parties have not agreed to exclude it.

1.2  Commencing the Arbitration

1.2.1  Disputes brought before local courts despite the existence of an arbitration agreement

1.23  Courts are required to assist arbitral proceedings by declining jurisdiction when a party commences court proceedings despite the existence of an arbitration agreement. Such proceedings may be initiated in error, for asserted lack of validity of the arbitration agreement, or for purely dilatory or strategic reasons.

1.24  Pursuant to article 1682(1) BCCP, a court ‘seized of a dispute which is the subject of an arbitration agreement shall, at the request of a party, declare that it has no jurisdiction, unless, in relation to the dispute, the agreement is not valid or has come to an end. To be admissible, this objection must be raised before any other plea or defense’. In other words, when a party raises a timely challenge to the court’s jurisdiction on the basis of a valid arbitration agreement for a dispute falling within the scope of the arbitration agreement, the court must decline jurisdiction and refer the parties to arbitration. This is in line with the provisions of Article II(3) of the 1958 New York Convention.

1.25  First, it is important to note that Belgian courts will not raise the issue of the existence of an arbitration agreement ex officio. It is indeed the party wishing to rely on an arbitration agreement that must take the initiative to contest the jurisdiction of the state court by raising an exceptio arbitri.

(p. 20) 1.26  Second, article 1682(1) BCCP specifies that the objection to the court’s jurisdiction must be raised in limine litis, ie at the outset of the proceedings. This requirement is met when the objection is raised during the first submissions and prior to any defence on the merits of the case. A failure to raise a timely objection will be considered a waiver of the arbitration agreement and preclude a party from invoking the exceptio arbitri later in the proceedings. In assessing an objection to its jurisdiction, the court will assess the validity of the arbitration agreement, and ensure that the dispute falls within its scope.

1.27  Finally, commencing court proceedings despite the existence of an arbitration agreement will not delay the arbitration proceedings. An application to the state courts does not prevent arbitration proceedings from being initiated or continued and an arbitral award from being rendered.11 In the case of parallel proceedings, any conflict between a judgment and an award will have to be addressed at the stage of enforcement.

Validity of the arbitration agreement

1.28  Article 1681 BCCP defines an arbitration agreement as ‘an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not’.

1.29  For an arbitration agreement to be valid, the parties must have expressed a clear intention to submit their dispute to arbitration. Furthermore, they must have been capable of concluding an agreement and the subject matter must be arbitrable.

Intention to arbitrate

1.30  The BLA does not contain any formal validity requirements. For the validity and existence of an arbitration agreement, the BLA requires only that the parties have expressed a clear intention to arbitrate. While a written arbitration agreement is to be recommended from an evidentiary perspective, an oral arbitration agreement is in principle valid. In the event of a dispute, the existence of an oral arbitration agreement may, for example, be proven by witnesses.12

1.31  Particular issues may arise when an arbitration clause is contained in a party’s general conditions. Generally, Belgian courts tend to enforce such clauses provided that (a) the parties had—or could have had—knowledge of the contents of the general conditions, and (b) they accepted them, even if implicitly by performance of the agreement.13

1.32  In addition to the commitment to arbitrate, parties are free to provide for other procedural matters in their arbitration agreement, and to determine the content and modalities thereof as they see fit.

Capacity

1.33  The parties must have capacity to conclude a valid arbitration agreement (subjective arbitrability). In this regard, article 1676(2) BCCP provides that ‘Anyone who has the capacity or power to conclude a settlement agreement may conclude an arbitration agreement’. Article 2045 of the Belgian Civil Code (hereinafter BCC) provides that a person may conclude a settlement agreement, provided that he is competent to dispose of the objects included in the settlement agreement. In practice, any adult (ie natural person above the age of 18) and any validly constituted and represented legal person may conclude an arbitration agreement, (p. 21) unless specific circumstances exist. Notable exceptions are public legal entities.14 However, pursuant to article 1676(3) BCCP, public legal entities are also authorized to conclude an arbitration agreement, provided that it relates to the settlement of contractual disputes. In this situation, any conditions applicable to the public entity’s capacity to enter into the underlying agreement will equally apply to the arbitration agreement. In addition, public legal entities may be authorized by law or royal decree to conclude arbitration agreements relating to matters other than contractual disputes, subject to any applicable conditions.

Arbitrability of subject matter

1.34  The arbitration agreement must relate to matters that may be submitted to arbitration (objective arbitrability). Pursuant to article 1676(1) BCCP, ‘All claims involving an economic interest may be the object of arbitration’.15 Claims of a non-economic nature that may be resolved by a settlement agreement may also be the object of arbitration.16 In practice, most commercial disputes are arbitrable, unless specifically excluded by law.17 As will be discussed in more detail in the following commentary, statutory exceptions may exist for disputes in relation to certain insurance contracts governed by Belgian law, disputes relating to the termination of exclusive distribution agreements when the territory covers (part of) Belgium, and agency agreements when the agent has his principal place of business in Belgium.

1.35  In a number of recent decisions, the Belgian Supreme Court has interpreted Article II(3) of the New York Convention, which provides that courts must refer to arbitration disputes that are the subject of an arbitration agreement, ‘unless it finds that the said agreement is null and void, inoperative or incapable of being performed’, and has held that the law to which the court must refer in order to determine whether or not a dispute is arbitrable is the lex fori, ie the law of the state before whose courts the arbitrability is challenged.18

1.36  Arbitration agreements regarding labour-related issues may only be concluded after the dispute has arisen. Prior arbitration agreements regarding such issues are null and void ipso jure.19

1.37  The issue of objective arbitrability may also arise at the enforcement stage, when an application is made to the local court to enforce or to set aside an award. When seised of an application ex parte to grant exequatur to an award, Belgian courts will ascertain ex officio whether the subject matter in dispute is arbitrable under Belgian law.20 Lack of arbitrability is also a ground for setting aside an award under article 1717(3)(b)(i) BCCP (see paragraph 1.128).

Separability

1.38  Finally, it is worth noting that the validity of the arbitration clause must be determined separately from the validity of the main agreement, as the arbitration clause is entirely autonomous from the underlying commercial agreement. This principle of separability of the arbitration agreement is set forth in article 1690 BCCP, which provides in (p. 22) relevant part that: ‘An arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.’ In other words, unless the arbitration clause itself is void, it remains valid even if the underlying agreement is null and void or has been terminated.

1.39  In practice, Belgian courts tend to refer the parties to arbitration as soon as they are satisfied that the parties intended to submit to arbitration, unless the subject matter of the dispute is not arbitrable under Belgian law.

Scope of the arbitration agreement

1.40  Once the validity of the arbitration agreement has been established, another issue that may arise is whether a specific dispute falls within its scope. This may require interpretation of the arbitration agreement. While older case law suggested that arbitration agreements are to be interpreted restrictively (on the consideration that arbitration was an exceptional form of dispute resolution), it is now generally agreed that the essential question lies not in whether or not a strict or liberal interpretation is required, but rather what the parties intended. This may require an assessment beyond the wording of the arbitration agreement itself, in order to give full effect to the will of the parties.21

1.41  In practice, Belgian courts will generally enforce the arbitration agreement and refer the parties to arbitration if the parties’ intention to submit their disputes to arbitration is apparent. Consequently, when satisfied that the parties to a contract intended to arbitrate disputes arising out of or in relation to it, courts will, to the extent possible, even give effect to pathological clauses, for example clauses referring to a non-existent arbitration institution or arbitration rules.

1.42  Furthermore, in the interest of legal certainty, courts will be cautious in limiting the scope of the arbitration agreement to certain types of disputes arising out of the agreement, unless the parties have included a clear and unambiguous provision to that effect.22

1.2.2  The role of courts in appointing arbitrators

1.43  At the early stages of arbitration proceedings seated in Brussels, the local courts may assist the parties in various ways in the constitution of the arbitral tribunal.

1.44  As indicated here, party autonomy underlies the BLA, and is apparent in the method of selection of an arbitral tribunal. Pursuant to article 1685(2) BCCP, parties may determine the procedure for selecting a sole arbitrator or panel in their arbitration agreement. While they may even name an arbitrator, this is not recommended, as the unavailability of that person might render the arbitration clause inoperable. Parties may designate a third party as appointing authority (often by reference to the rules of an arbitration institution), or agree on this issue once the dispute has arisen. Article 1684(1) BCCP requires only that the arbitral tribunal be composed of an uneven number of arbitrators.23 If the parties have not (p. 23) agreed on any alternative procedure for the selection of arbitrators, each party will appoint an arbitrator, and those arbitrators will subsequently jointly appoint the president.24

1.45  Although the appointment process is often set out by the parties in the arbitration agreement or by reference to a set of arbitration rules, situations may arise in which the parties require assistance from the courts in the appointment of arbitrators. For these situations, the BLA has attributed specific competences to the president of the Court of First Instance of Brussels.25

1.46  When a party, an appointing authority, or the party-appointed arbitrators fail to appoint the arbitrator(s) in accordance with the procedure agreed upon, either party may file a request to the president of the Court of First Instance to proceed with the appointment.26 This is also the case when the parties have not agreed on a procedure for the selection of arbitrators and one of the parties fails to appoint an arbitrator within a month following the notice; when the party-appointed arbitrators fail to agree on the appointment of a president of the arbitral tribunal within one month of the appointment of the second arbitrator; or when parties fail to agree on the composition of the arbitral tribunal in a situation with more than three arbitrators.27 A particular situation in which court intervention may be required involves multi-party disputes: in principle, unless a different mechanism has been agreed between the parties, parties on the ‘same side’ are to jointly appoint one arbitrator. Failing an agreement among these parties on ‘their’ arbitrator, and in the event that the parties (or rules to which they have referred) do not cover this situation, either party may apply to the president of the Court of First Instance to proceed with the appointment.

1.47  A request to appoint an arbitrator is brought before the president of the Court of First Instance by means of a unilateral request. The president will decide as in summary proceedings.28 When appointing an arbitrator, the president of the Court of First Instance takes into account all capacities required in the light of the facts and circumstances of the case as well as all relevant considerations to ensure the arbitrator’s impartiality and independence.29 The president’s decision to appoint an arbitrator is final. However, as a matter of exception, a decision not to appoint an arbitrator is susceptible to appeal before the Court of Appeal.30

1.48  It is important to note that an appointment decision of the president of the Court does not limit the arbitral tribunal in determining its own jurisdiction in application of the competence-competence principle.31 Nor does it prevent the parties from contesting jurisdiction, or from bringing a challenge against a member of the arbitral tribunal in accordance with the applicable arbitration rules or legal provisions.

1.49  By entrusting decisions regarding the appointment of arbitrators to the president of the Court of First Instance and limiting appeal against such decisions to negative decisions only, the BLA provides an efficient support mechanism for the appointment of the arbitral (p. 24) tribunal. This reduces the potential for parties to stall the proceedings by refusing to appoint an arbitrator, while still allowing parties to raise genuine jurisdictional concerns before the arbitral tribunal. Considering that arbitration rules generally provide for an appointment mechanism and appointing authority, this support mechanism is particularly useful for ad hoc arbitrations. However, it may also turn out to be useful when a third party has been entrusted with making the appointment, but fails to do so within a reasonable timeframe.

1.2.3  Role of courts in resolving jurisdictional questions

1.50  The BLA expressly sets out the competence-competence principle. Pursuant to article 1690(1) BCCP: ‘The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement’. Any objection against the arbitral tribunal’s jurisdiction must be raised in limine litis.32

1.51  The arbitral tribunal’s power to assess its own jurisdiction is subject to judicial control only at the annulment phase. Pursuant to article 1690(4) BCCP: ‘The decision by which the arbitral tribunal declares that it has jurisdiction may only be challenged...together with the final award and by the same procedure...’. The notion of final award should be understood as an award finally disposing of one or more of the issues in dispute. According to article 1717(1) BCCP, a request for setting aside the award ‘is admissible only if the award can no longer be contested before the arbitrators’. This may be the case when the arbitral tribunal issues a partial award in which it finally decides on a number of issues, but retains jurisdiction to deal with the remaining issues in later awards. As this partial award may no longer be contested before the arbitrators, it is susceptible to annulment, and a party contesting the arbitral tribunal’s decision to assume jurisdiction is allowed to contest this decision from this moment onwards.

1.52  When, on the other hand, the arbitral tribunal bifurcates the arbitration proceedings and deals only with the issue of jurisdiction in a first partial award, the award on jurisdiction may not be contested until a later stage.

1.53  In the event that the arbitral tribunal declares itself without jurisdiction, the arbitration proceedings will be terminated. Either party may, however, apply to the Court of First Instance, which may review the merits of the arbitral tribunal’s decision that it lacks jurisdiction.33 Should the court find that the arbitral tribunal does have jurisdiction, this decision has the authority of res judicata, which binds the arbitral tribunal, and the arbitration will resume.34

1.54  As discussed previously, Belgian courts will refer a dispute to arbitration at the request of a party, unless the arbitration agreement is either invalid with regard to the dispute or has ceased to exist.35 In application of the competence-competence principle, a finding by the courts that the arbitration agreement is valid does not, however, preclude the arbitral tribunal from ruling on its own jurisdiction, if this is still contested.

1.2.4  Role of courts in enjoining arbitration

1.55  Belgian law does not provide any grounds to apply for measures, such as anti-suit injunctions, prohibiting another party from starting or continuing legal proceedings abroad. (p. 25) Furthermore, Belgian courts will generally refuse to uphold anti-suit injunctions ordered by foreign courts. No case law on this issue has been reported, with one notable exception. In 1989, the president of the Court of First Instance of Brussels held that a US issued anti-suit injunction could not be upheld in Belgium, as this would constitute a violation of Belgian public policy.36

1.56  While there have been no cases published in which Belgian courts have had to decide specifically on applications to enjoin arbitration, the outcome is likely to be the same. Anti-suit injunctions in favour of arbitration are in any case not permitted between EU Member States. In West Tankers,37 the European Court of Justice held that anti-suit injunctions issued by a court of a European Member State on the basis of the existence of an arbitration agreement are incompatible with the Brussels I Regulation,38 when this would prevent the court of another EU Member State from exercising the jurisdiction conferred on it by the Regulation.

1.2.5  Role of courts in joinder, consolidation, and intervention

1.57  Parties may be confronted with a situation in which multiple claims that are very closely connected are brought before different instances. Such connection may exist when one claimant wishes to bring multiple claims against a counterparty and/or when multiple parties are involved on either side. As this could potentially lead to conflicting decisions, most procedural laws allow courts to join such parallel proceedings in litigation. The question is to what extent the courts could play a similar role for the joinder of arbitration proceedings.

1.58  First, joinder is not possible when one proceeding is brought before an arbitral tribunal and the other before a state court, and at least one party to the court proceedings is not a party to the arbitration agreement, unless the parties to the arbitration agreement waive their right to arbitrate and agree to joinder before the court. This is a consequence of the principle that, pursuant to article 1165 BCC, contracts (including arbitration agreements) bind only their signatories and cannot be extended to third parties. Under Belgian law, the extension of an arbitration agreement to non-signatories would be possible only under such mechanisms as consent by conduct, assignment of contract, subrogation, or legal succession of parties.

1.59  Second, the BLA does not contain any specific provisions regarding the consolidation of related proceedings that are brought before two arbitration tribunals. Some arbitration rules do, however, provide for this situation. The new CEPANI rules that entered into force on 1 January 2013 deal, in articles 10 to 13, with issues relating to multi-party and complex arbitration proceedings. Article 13, entitled ‘Consolidation’, sets out the conditions under which the Appointments Committee or Chairman of CEPANI may, at the request of either a party or of the arbitral tribunal, order the joinder of different arbitration proceedings when one or more contracts with a CEPANI arbitration clause give rise to separate—yet related or indivisible—arbitration proceedings. Such a request will be granted when all parties agree to consolidation as well as to the manner in which such consolidation shall occur. Failing such agreement, the chairman or the appointments committee will decide on the joinder with (p. 26) particular attention to (a) whether or not the parties have excluded the possibility of joinder in their agreement; (b) whether the claims in the different proceedings have been made on the basis of the same arbitration agreement or—when based on different arbitration agreements—whether the different agreements are compatible; and (c) whether the proceedings involve the same parties and relate to disputes arising out of the same legal relationship. Further elements that will be taken into account are the progress made in the different arbitration proceedings (notably regarding the constitution of the arbitral tribunal) and the place of arbitration provided for in the different arbitration agreements. In making this decision, the appointments committee or the chairman will take into account the provisions on the appointment of arbitrators. Unless the parties have agreed otherwise, no consolidation may, however, be ordered if any decision regarding preliminary measures, admissibility, or the merits of the claim has already been made.

1.60  As discussed here, the BLA gives the president of the Court of First Instance a role in assisting the parties with the appointment of arbitrators, which is in many ways similar to the role of an arbitral institution. The question therefore arises of whether—although not explicitly provided for—the president of the Court of First Instance would (similarly to the case for the arbitration institution under, for example, the CEPANI Rules and in the light of the underlying principles of the BLA) also have the power to order joinder. No case law on this issue has been published to date, and no provision in this regard was included in the BLA as a result of the 2013 revision.

1.61  To ensure efficient resolution of related disputes among multiple parties, the BLA does provide for the possibility of intervention by third parties in the arbitral proceedings, on the initiative of the third party itself or of the parties in dispute. Any affected third party may address a written request to intervene in the arbitral proceedings to the arbitral tribunal, which shall communicate this request to the parties.39 Also, a party involved in the arbitration proceedings may call upon a third party to intervene in the proceedings.40

1.62  In both situations, the intervention of a third party requires an arbitration agreement between the third party and the original parties to the dispute, as well as the unanimous consent of the arbitral tribunal.41 The BLA does not provide for appeal before the courts when an arbitral tribunal refuses the intervention of a third party or cannot agree unanimously.

1.3  During the Arbitration

1.3.1  Role of courts in ruling on challenges to arbitrators

1.63  One of the cornerstones of an efficient justice system is the fundamental principle that disputes are settled by an independent and impartial judge. As part of the judicial nature of their role, the same applies to arbitrators. For this reason, article 1686(1) BCCP imposes a duty on arbitrators to disclose all relevant circumstances raising justifiable doubts as to their impartiality or independence, both before their appointment and throughout the proceedings.

(p. 27) 1.64  When justifiable doubts exist as to an arbitrator’s impartiality or independence, or when an arbitrator does not possess the qualities required by the parties’ agreement, a party may bring a challenge.42 Pursuant to article 1686(2) BCCP, a party may bring a challenge only for reasons of which it becomes aware after the appointment has been made. In other words, reasons for challenge known to a party at the pre-appointment stage (eg as a result of an arbitrator’s disclosure in a statement of impartiality and independence) must be raised immediately at that stage. A failure to do so precludes that party from invoking such reasons as a ground for challenge after the establishment of the arbitral tribunal.

1.65  Parties may agree on a challenge procedure.43 Most often, this is done by reference to institutional arbitration rules. When the parties have agreed on a challenge procedure, the BLA precludes them from applying to the state courts, in order to prevent dilatory manoeuvres. In deviation from Article 13 of the Model Law, the BLA only permits parties to turn to the state courts for assistance in the challenge of arbitrators when no agreement regarding a challenging procedure exists.44 This is the case for ad hoc arbitration, or when the parties have referred to rules that do not deal with challenges without specifically including a challenge procedure in their agreement. In these cases the BLA provides for a two-tier procedure in article 1687(2) BCCP.

1.66  Within 15 days of becoming aware of the constitution of the arbitral tribunal, or after becoming aware of circumstances that may constitute a ground for challenge of an arbitrator, a party that wishes to challenge the arbitrator must send a written notice setting out the reasons for such challenge to the arbitrator in question as well as to the other members of the arbitral tribunal (if any).

1.67  If the arbitrator in question does not resign within ten days after receiving a challenge notice, or if the other party does not accept the challenge, the challenging party will need to seek the assistance of the president of the Court of First Instance, again within ten days. To this end, the challenging party must summon the arbitrator in question, as well as the other parties, before the president of the Court. When an application to challenge is made to the Court of First Instance, the court will determine whether there are grounds to uphold the challenge. This decision is not subject to appeal.45 Moreover, an application to challenge an arbitrator before the president of the Court neither suspends the arbitral proceedings ipso jure, nor prevents the arbitral tribunal from issuing an arbitral award. It is up to the arbitral tribunal to assess whether such a suspension would be necessary in the light of the relevant facts and circumstances.46

1.68  The BLA provides for a similar procedure in situations where an arbitrator becomes de jure or de facto unable to perform his functions or fails to complete his mission without undue delay for any other reason. In this case, the arbitrator’s mission ends on agreement of the parties, or when the arbitrator withdraws within the conditions set out by article 1685(5) BCCP.47 In the case of disagreement between the parties regarding such a withdrawal, however, either party may summon the other party and the arbitrator before the president of the Court of (p. 28) First Instance, who will decide in accordance with article 1680(2) BCCP. Again, any such decision is final and not subject to appeal.

1.69  In the case of a resignation or successful challenge, the arbitrator will be replaced in accordance with the rules governing the initial appointment.48 If this is not possible,49 either party may make a request for the appointment of a substitute arbitrator to the president of the Court of First Instance, in accordance with article 1680(1) BCCP.50 Once a substitute arbitrator has been appointed, the arbitral tribunal will, after consulting the parties, decide whether (parts of the) proceedings will have to be redone. However, any partial final awards or decisions taken cannot be revoked.51

1.70  In addition to assisting parties, courts may also assist arbitrators. In principle, once the arbitrator has accepted his mission he may not withdraw.52 He may, however, apply to the president of the Court of First Instance to relieve him of his duties in the light of particular circumstances (such as the non-payment of his fees). The decision of the president of the Court of First Instance is not open to appeal.53

1.3.2  Role of courts in granting provisional relief in support of arbitration

1.71  Article 1691 BCCP gives arbitrators the power to order interim or protective measures, with the exception of the conservatory attachment of goods, which remains within the exclusive jurisdiction of the courts.

1.72  This provision does not, however, prevent the parties from bringing an action for interim or protective measures before the state courts, as the BLA also gives the courts power to grant provisional relief in support of arbitration proceedings.54 Parties may, moreover, agree to restrict the possibility to order interim measures to courts only.55 An application to the courts for interim or provisional relief is not considered to be a waiver of arbitration.56

1.73  Applications for interim or provisional relief are brought before the president of the Court of First Instance, or—in matters falling within the competence of the Commercial Court—before the president of the Commercial Court acting in summary proceedings (référé/kortgeding).57 Pursuant to article 1698 BCCP, the president before whom the claim for interim or conservatory relief is brought, has the same powers as he has in relation to court proceedings, regardless of whether the arbitration is seated in Belgium or abroad. The president is to exercise this power in accordance with its own procedures58 and with due consideration of the specific features of arbitration.59 The president of the court may award interim or provisional relief within a timeframe appropriate under the circumstances, in case of urgency.60 To this (p. 29) end, a party must demonstrate that, if no decision is made in the short term, its interests will suffer considerable harm, and that a regular application to the court (or in this case arbitral tribunal) will not lead to a timely solution. However, if the president finds—if necessary ex officio—that the matter is not urgent, he will dismiss the request.

1.74  The need to apply for interim relief to the courts may arise at an early stage in the proceedings. Following the arbitral tribunal’s constitution, the court’s power to grant provisional relief continues to exist in parallel with the tribunal’s power.61 Once the arbitral tribunal is appointed and in place, Belgian courts will in practice adopt a cautious approach to ordering interim relief, unless specific facts and circumstances warrant their intervention. This might be the case in situations of urgency, when it would be impractical or even impossible to convene a session of the arbitral tribunal in order to have emergency protective measures ordered and enforced in time. Furthermore, bearing in mind the lack of imperium of an arbitral tribunal, parties may need to turn to state courts in order to obtain immediately enforceable provisional measures.

1.75  Courts may only order provisional or conservatory relief.62 The final decision on the merits falls under the exclusive jurisdiction of the arbitral tribunal. Any provisional relief ordered prior to the constitution of the arbitral tribunal will in principle remain in force following the appointment of the arbitral tribunal. If the underlying facts have changed, however, a party may always apply to the arbitral tribunal (or, depending on the circumstances, the court) for new provisional relief or for a modification of the measures imposed.63

1.76  Finally, as indicated here, the arbitral tribunal itself has the power to order interim measures. Unless the parties have agreed on any limitations, the arbitral tribunal can order the same relief as state judges.64 The arbitral tribunal may require the party requesting the interim measure to provide appropriate security,65 or impose on either party the duty to disclose any material change in circumstances relevant for the interim measures ordered.66 One particular tool given to arbitrators under the BLA to ensure compliance is the power to impose a penalty on a non-complying party (astreinte/dwangsom), in accordance with the general provisions of articles 1385bis to octies BCCP.67 The arbitral tribunal may order a party to pay a predetermined fine per infraction, or for each time period of non-compliance (eg per hour, day, or month). Such ‘astreintes’ may not be imposed to ensure compliance with decisions ordering the payment of sums of money. Any difficulties that might arise in enforcing the astreinte against a party located in Belgium fall within the power of the attachments judge, a special judge linked to the Court of First Instance.

1.77  Decisions on provisional relief by the arbitral tribunal, whether in the form of an order or an award, are binding and may be declared enforceable by the Court of First Instance. As the (p. 30) enforcement of interim measures occurs at the risk of the requesting party,68 the court may, however, require appropriate security.69 Recognition and enforcement of an interim measure ordered by the arbitral tribunal may only be refused if, after a prima facie review, the court finds that one of the grounds to refuse enforcement of arbitral awards listed in paragraphs (i) to (v) of article 1721(1)(a) BCCP justifies a refusal; that an order of the arbitral tribunal to provide appropriate security has not been complied with; that the measure has been withdrawn or suspended by the arbitral tribunal or by the competent court; or that the one of the grounds listed in article 1721(1)(b) BCCP applies to the recognition and enforcement of the interim measure in question.70

1.3.2  Role of courts in compelling testimony and evidence

1.78  The arbitral tribunal has the power to determine the admissibility of evidence as well as its weight, unless the parties have agreed otherwise.71

1.79  While the taking of evidence is generally in the hands of the arbitral tribunal, state courts may grant evidentiary assistance. This is part of the courts’ power to order provisional or conservatory relief in support of arbitration proceedings. It is worth recalling that an interlocutory application to the court to obtain provisional relief to obtain certain testimony or evidence is not inconsistent with the arbitration agreement, nor does it imply a waiver of the right to arbitrate.72

1.80  Court intervention may in particular be useful prior to the constitution of the arbitral tribunal, for example to obtain measures to preserve evidence that might otherwise disappear. Also during the arbitration proceedings, parties may file an application to the president of the Court of First Instance to take all measures necessary for the gathering of evidence. Given the arbitral tribunal’s competence to determine the admissibility and weight of evidence, an application for court assistance in matters of gathering evidence requires prior approval of the arbitral tribunal.73 The arbitral tribunal may refuse consent if it is of the opinion that the intended measures are inadmissible or irrelevant, or may impose a time limit within which the application to the courts must be made.

1.81  Court assistance may, in particular, be useful for certain types of measures falling outside the scope of the arbitral tribunal’s power:

  • •  First, as a matter of exception, arbitrators may not decide on claims regarding forgery of authentic deeds.74 In this case, either party may file an application before the president of the Court of First Instance for a ruling. An application regarding the forgery of an authentic deed suspends the arbitration proceedings ipso jure until the arbitral tribunal receives notification of the final decision on the matter.75 The decision of the president of the Court of Appeal, acting in summary proceedings, is final and not susceptible to appeal.76 The (p. 31) arbitral tribunal does have the power to rule on claims regarding forgery of any documents other than authentic deeds.77

  • •  Second, unlike courts and given their lack of imperium, arbitral tribunals cannot order third parties to assist in gathering evidence. Consequently, court assistance may be necessary when a witness refuses to testify, or when a third party is presumed to hold a document in its possession.78 In such cases, it is up to the arbitral tribunal to assess the need for suspension of the arbitral proceedings when allowing a party to turn to the competent court for assistance.

1.3.3  Ability of foreign practitioners to appear as counsel or arbitrator

1.82  The BLA provides for a very liberal system as to who may act as arbitrator or counsel in arbitrations with their seat in Belgium.

1.83  First, parties are generally free to select the arbitrator of their choice, provided this person is capable of acting as an arbitrator79 and meets the requirements of independence and impartiality. The BLA does not contain any requirements or limitations with regard to education, experience, residence, or nationality. In the light of the principle of party autonomy, parties are free to agree specific requirements for arbitrators in their agreement. This is specifically confirmed for the question of nationality: while the BLA starts from the principle of non-discrimination in the appointment of arbitrators, article 1685(1) BCCP confirms that parties are free to agree on certain exclusions based on nationality.80

1.84  Second, the BLA does not contain any restrictions with regard to party representation: each party has the right to choose its representative in the arbitration proceedings. Parties may be represented either by a lawyer or by a specially empowered representative, including in-house counsel. No statutory restrictions limit foreign nationals in acting as arbitrators in Belgium. Moreover, the requirements and qualifications necessary for attorneys appearing in Belgian courts are not applicable to arbitration. Parties are therefore free to select counsel of their choice, regardless of nationality or admission to a bar or law society.

1.3.4  Local requirements for conduct of arbitration hearings

1.85  Article 1699 BCCP subjects all arbitration proceedings to two fundamental principles: parties must be treated with equality and each party must be given a full opportunity to present its case. Within the limitations imposed by these general principles of due process and fair trial, however, the parties are free to organize the arbitral proceedings as they see fit.81 If the (p. 32) parties have not agreed on specific procedural rules, these will be set by the arbitral tribunal.82 The BLA contains few specific requirements in this regard.

Conduct and venue of hearings

1.86  In practice, it is the arbitral tribunal that decides, in consultation with the parties, how the actual hearing will be conducted. The chairman of the arbitral tribunal is responsible for setting the schedule for and presiding at the hearings.83

1.87  The arbitral tribunal must ensure that each party has a fair opportunity to substantiate its claims and to present its case.84 Parties must submit their written arguments and corresponding evidence within the time limits agreed between the parties or set by the arbitral tribunal.85 In case of default by a claimant, the arbitral tribunal shall terminate the arbitral proceedings, without prejudice to any counterclaim or cross-claim made by another party.86 In case of default of a respondent, the arbitral tribunal may continue the arbitral proceedings, without, however, construing such default as an admission of the claimant’s submissions.87

1.88  In addition to written submissions, the parties have a right to present their arguments at an oral hearing. They may, however, waive such right and agree to conduct the proceedings solely in writing.88 If, without legitimate cause, a party that is properly summoned does not appear or does not present its case on the date fixed for the oral hearing, the arbitral tribunal may proceed on the basis of the information before it and render an award.89

1.89  Unless otherwise agreed by the parties, the arbitral tribunal may hold hearings and meetings at the venue it considers most appropriate, after consulting the parties.90 The fact that the legal seat of the arbitration is Brussels does not therefore require that hearings take place there as well. For various reasons, it may be more appropriate to hold a hearing at another location. A decision to hold a hearing at a venue other than the seat has no legal consequences. Brussels remains the seat of the arbitration.

Language

1.90  While—as indicated in the preceding paragraphs—the use of languages in court proceedings in Belgium is governed by the strict rules of the Law of 1935, this law does not apply in arbitration. As expressly provided for in article 1703(1) BCCP, the parties are therefore entirely free to decide in which language or languages they wish the proceedings to take place. Failing an agreement on this point between the parties, the arbitral tribunal will make the decision.91 In any case, the arbitral tribunal may order parties to file a translation of exhibits that are not in the language of the proceedings.92

(p. 33) Witnesses

1.91  Finally, the BLA does not restrict who can appear as witnesses and allows parties and arbitrators to organize the taking of evidence—including witness evidence—in the manner they consider most appropriate. The arbitral tribunal decides what weight to give the evidence submitted by the parties.93 In arbitration proceedings, witnesses are not required to swear an oath or affirmation.94

1.4  The Award

1.4.1  Mandatory rules as to form

1.92  The formal requirements for arbitral awards are found in article 1713 BCCP. An arbitral award must be rendered by an absolute majority of votes. The award must be made in writing and must be signed by the arbitrators, or at least by a majority of them. In the event that an arbitrator is unable or unwilling to sign, the reason for the omitted signature must be recorded in the award.95

1.93  The award must contain the reasoning applied by the arbitrators in reaching their conclusion.96 The parties may not relieve the arbitrators of the obligation to provide reasons, which is considered to be part of Belgian internal public policy. The BLA is stricter on this point than Article 31(2) of the Model Law, which permits parties to agree that no reasons need be given in the award. The requirement that reasons be given is not considered international public policy in Belgium, although this does not prevent the enforcement of foreign arbitral awards that are not reasoned if these are rendered in compliance with the applicable foreign law.97

1.94  In addition to the decision itself, the award must contain the names and addresses of the arbitrators and the parties, and a description of the object of the dispute. The award must be dated, and the seat of the arbitration and place where the award was made must be indicated.98 The place where an award is made generally coincides with the seat of arbitration, even though it may be physically signed elsewhere, in which case this should also be indicated. Failure to do so does not, however, expose the award to setting aside.

1.95  Finally, although not explicitly provided in the BLA, an award should contain an operative part. This follows from the general duty of arbitrators to render an enforceable award, and taking into consideration that in many jurisdictions only the operative part (and not the reasoning) will be considered to have the authority of res judicata. In order for an award to be enforceable, the actual decisions of the arbitral tribunal should therefore be set out clearly (and preferably separately) in the arbitral award.

1.4.2  Mandatory rules as to substance

1.96  Unless the parties have imposed limitations by agreement, the arbitral tribunal can order the same relief as state courts.(p. 34)

1.97  Under Belgian law, the type of damages and interest that can be awarded is considered to be an issue of substantive law; hence, no specific provisions regarding this issue are included in the BLA. Under Belgian substantive law, damages are aimed at the reparation of harm incurred by a party. Punitive or exemplary damages are unlawful and in principle are not enforceable in Belgium.

1.98  In order to ensure full compensation, courts and arbitral tribunals may award interest, at the request of a party. Compound interest may be awarded under certain conditions: (a) interest must have been owed for at least one year, and (b) the parties must either have agreed that compound interest would be due, or the creditor must have requested compound interest by legal notice.99

1.99  The arbitral award must determine and allocate the costs of arbitration. This notion is broadly defined in the BLA: unless otherwise agreed between the parties, arbitration costs include the fees and costs of the arbitrators, defence costs, costs of the arbitration institutions, and all other costs incurred in relation to the arbitration proceedings.100 No fixed rule of cost shifting exists. Generally, arbitral tribunals with a seat in Belgium will take into account the relative successes of the parties in their claims, but they have the discretion to consider other elements that they find relevant as well. It is worth noting that article 1022 BCCP, which limits compensation for a party’s legal fees to a flat rate based on the amount in dispute, applies only to court proceedings and not to arbitration.

1.5  After the Award

1.5.1  Termination of the proceedings

1.100  Once the award is rendered, the chairman of the arbitral tribunal or sole arbitrator must notify the parties by sending them a signed original of the award, and deposit an original of the award with the registrar of the Court of First Instance of the place of the arbitration.101 The parties may waive this deposit requirement. In institutional arbitration, the notification and deposit of the arbitral award may be taken care of by the arbitral institution.

1.101  The arbitral proceedings are terminated by the signing of the arbitral award, or by a decision of the arbitral tribunal. The latter might occur if a claimant withdraws its claim (and the respondent does not object to such withdrawal), or when both parties agree to terminate the arbitration.102 The arbitrators’ mandate terminates upon the termination of the arbitration proceedings, but this does not prevent the making of an application for correction, interpretation, or completion of the arbitral award.103

1.102  Unless the award violates public policy or the dispute was not capable of settlement by arbitration, and provided that the issue (or part of it) disposed of in the award may no longer be contested before the arbitrators, the notification to the parties gives the award in question the authority of res judicata.104

(p. 35) 1.103  For the sake of completeness, it is worth noting that the proceedings terminate ipso jure when the arbitral tribunal fails to render an award within the time period agreed between the parties or imposed by the president of the Court of First Instance, and no extension has been granted.105

1.5.2  Appeal

1.104  Arbitral awards rendered in Belgium cannot be appealed before Belgian state courts, which may only hear applications to set aside an award pursuant to article 1717 BCCP.

1.105  An appeal before a second arbitral tribunal is possible only in the rare event that the parties have expressly provided for this in their arbitration agreement.106 Notwithstanding such an appeal, an award may be provisionally enforced if the arbitrators have so ordered. The arbitral tribunal may, however, subject any provisional enforcement of the award to the provision of security.

1.106  Unless a different time limit has been agreed upon, an appeal against an award must be brought within one month of the notification of the award.107 Other than for setting aside applications, the BLA does not restrict the grounds for appeal.

1.107  In practice, it is exceptional for parties to agree on the possibility of appeal against an arbitral award, as this would undermine the greatest advantages of arbitration, the celerity and finality of resolution of the dispute.

1.5.3  Local standards for setting aside/annulment

1.108  Arbitral awards may be challenged when the issues in dispute can no longer be contested before the arbitrators, and are therefore considered to have the authority of res judicata.108 A challenge may target the award as a whole or in part, provided that this part can be separated from the rest of the award.

1.109  An arbitral award may only be annulled on the basis of the limited grounds set out in article 1717 (3)(a) and (b) BCCP. Generally speaking, Belgian courts apply such grounds strictly. As an annulment action is not a full appeal, the court will review the arbitral award in the light of the grounds for annulment raised by the parties to determine whether there are any grounds to annul the award (or parts thereof). The court will, however, not review the merits of the dispute and may not substitute its own assessment for that of the arbitral tribunal.

Grounds to be proven by a party

1.110  A party may request the setting aside of an arbitral award on the basis of the following grounds set out in article 1717(3)(a) BCCP.

Lack of a valid arbitration agreement

1.111  An arbitral award may be annulled if a party lacked capacity to conclude an arbitration agreement, or if no valid arbitration agreement exists.109

1.112  First, an award may be annulled if the arbitral proceedings were based on an arbitration agreement concluded by a party lacking capacity to do so. As discussed previously, any (p. 36) person capable of concluding a settlement agreement may conclude an arbitration agreement, which requires the capability to dispose of the objects included in the agreement.110 Pursuant to article 1676(3) BCCP, public legal entities are also authorized to conclude an arbitration agreement, provided it relates to the settlement of contractual disputes, or—for disputes other than contractual disputes—that they are authorized by law or royal decree.

1.113  Second, the award may be annulled if no valid arbitration agreement exists. As discussed with respect to the enforcement of arbitration agreements, Belgian courts will primarily examine whether the parties had the intention to submit their disputes to arbitration. This ground also covers the question of whether the agreement to arbitrate was validly concluded under the applicable lex contractus. Failing a choice of law of the parties, the court will assess whether a valid arbitration agreement exists under Belgian law. For example, did both parties give their consent free of fraud, violence or error, and was it concluded before the dispute arose in a labour dispute?111

1.114  A party that was aware of any such ground during the course of the arbitration proceedings but that did not invoke it at the time is estopped from raising it as a ground for annulment pursuant to article 1717(5) BCCP.

Violation of due process requirements

1.115  The award may be annulled if a party has been unable to defend its case, provided that the irregularity had a bearing on the decision.112

1.116  First, the award may be annulled if the parties were not properly notified of the appointment of an arbitrator, or of the arbitral proceedings. A notification requires the sending in writing of information through a means of communication or transmission that allows proof of sending.113 Unless the parties provided differently, such notification must be addressed in accordance with article 1678 BCCP.

1.117  Second, an arbitral award may be set aside if a party has not been able to defend its case for any other reason. In this regard, it is worth recalling that article 1699 BCCP sets forth the general principle of equal treatment of the parties, and the requirement that each party be given a full opportunity to present its case. In practice, this requires that the parties must be given a reasonable opportunity to bring their case and to take a position regarding the arguments and evidence submitted by the other party. The parties must also be given a reasonable opportunity to take a position regarding all elements of procedure. Although the arbitral tribunal has the general power to decide on issues of procedure not agreed upon by the parties and has control over the conduct of the proceedings, it must consult the parties on all elements of procedure. It is sufficient that a reasonable opportunity be given: a party that does not make use of the opportunity cannot later raise this as a ground for annulment.114

1.118  A party that was aware of any such ground during the course of the arbitration proceedings but that did not invoke it at the time is estopped from raising it as a ground for annulment pursuant to article 1717(5) BCCP.

(p. 37) Decision ultra petita

1.119  The arbitral award may be annulled if the arbitral tribunal exceeded either its jurisdiction115 or its powers.116

1.120  An arbitral tribunal is considered to exceed its jurisdiction when it decides on an issue that was not envisaged by, or that falls outside the scope of, the arbitration agreement. This is, for example, the case when an arbitral tribunal awards more to one of the parties than it claimed, or when it decides on issues that were not raised by the parties. When the decisions that deal with matters not covered by the submission to arbitration can be separated from the other issues that were validly decided, only the former are liable to annulment. In that hypothesis, only a partial annulment of the arbitral award, limited to the parts decided ultra petita, will therefore be possible.117

1.121  A party that was aware of any such ground during the course of the arbitration proceedings but that did not invoke it at the time is estopped from raising it as a ground for annulment pursuant to article 1717(5) BCCP.

Lack of reasoning

1.122  In deviation from the Model Law, an award may be set aside if it is not reasoned.118 As previously mentioned, article 1713(4) BCCP requires an arbitral award to be motivated. The requirement to motivate any judicial act is part of Belgian internal public policy and therefore binding on arbitral tribunals with their seat in Belgium. However, this does not prevent the enforcement of a foreign arbitral award lacking reasons, if the award in question is rendered in compliance with the applicable procedural law.119

1.123  The reasoned award requirement is merely a formal requirement; on an application for annulment, the court must limit its review to formally ascertaining that reasons have been given. The court may not review the pertinence or sufficiency of the tribunal’s reasons, or substitute its own assessment for that of the arbitral tribunal. This is implicitly confirmed in the travaux préparatoires, where it is stated that: ‘The arbitral award will no longer be susceptible of being annulled because of contradictory provisions. Similarly, a contradiction in the motivation may not lead to the annulment of an arbitral award.’120

1.124  Finally, this ground does not permit the annulment of an arbitral award when the tribunal’s reasoning is erroneous in fact or in law. Neither errors in law, nor errors in fact constitute grounds for annulment.

Irregularities in the composition of the arbitral tribunal or the conduct of the arbitral proceedings

1.125  The award may be set aside if it was rendered by an arbitral tribunal that was irregularly constituted or if the arbitral proceedings were irregularly conducted.121 This is the case if the composition of the arbitral tribunal or the arbitral proceedings did not comply with the parties’ valid agreement or, alternatively, with the provisions of the BLA. Irregularities in the arbitral procedure may only constitute a ground for annulment to the (p. 38) extent that they influenced the arbitral award. However, this limitation does not apply to an irregularity in the constitution of the arbitral tribunal.122

1.126  In any case, a party that was aware of any such ground during the course of the arbitration proceedings but that did not invoke it at the time, is estopped from raising it as a ground for annulment pursuant to article 1717(5) BCCP.

Grounds for setting aside that may be considered by the courts ex officio

1.127  Parties may request the setting aside of an arbitral award on the grounds set out in article 1717(3)(b) BCCP. Such grounds may be raised by the court on its own motion, on condition that the parties are given an opportunity to take a position on such grounds, in compliance with the principles of due process and fair trial. Article 1717(3)(b) BCCP lists non-arbitral disputes, violation of public policy, and fraud as grounds for annulment.

Non-arbitrable dispute

1.128  The arbitral award may be annulled if the dispute was not arbitrable.123 The basic rule on the objective arbitrability of disputes under Belgian law is set out in article 1676(1) BCCP, which provides that claims involving an economic interest, as well as disputes of a non-economic nature that may be the object of a settlement agreement, may be submitted to arbitration,124 unless restrictions exist in specific legislation.125

1.129  Under this rule, most commercial disputes are arbitrable. This includes antitrust, intellectual property, and bankruptcy disputes, subject to the restrictions and limitations that are generally also found in other European jurisdictions, whereby the exclusive competence for certain issues that are considered essential is reserved for courts or authorities at the level of the European Union or at national level. For example, specific legislation restricting the arbitrability of disputes can be found with regard to labour law126 and certain insurance contracts.127

1.130  Finally, some restrictions exist with regard to the arbitrability of disputes arising from the termination of exclusive distributorship agreements with an indefinite term. The Exclusive Distribution Law of 27 July 1961, which is of a mandatory character, sets out the conditions under which a supplier may terminate such agreements, and provides in article 4 that a distributor may bring disputes relating to the termination of an exclusive distribution agreement with territory in Belgium (or parts thereof) before the Belgian courts, which are to apply the mandatory provisions of Belgian law only. Unless parties have concluded an arbitration agreement after the dispute has arisen in which they choose a different applicable law, disputes relating to the termination of an exclusive distributorship with territory in Belgium are only considered to be arbitrable if the arbitrators are bound to apply the mandatory provisions of the Belgian Distribution Act of 1961. This has, however, been the subject of a lengthy legal controversy that remains unsettled. Similar, and equally controversial, case law has developed in recent years in respect of disputes relating to commercial (p. 39) agency agreements. When the agent has its principal place of business in Belgium and the applicable substantive law would not offer a protection equivalent to the mandatory provisions of Belgian law, an agency dispute falling within the scope of Belgian law may not be arbitrable.128

Violation of public policy

1.131  An arbitral award may be set aside if it is contrary to public policy.129 Under Belgian law, rules of public policy are considered to be those that touch upon the essential interests of the state or the community, or that introduce in private law fundamental legal principles on the basis of which the moral or economic order of a society is founded.130 Such rules can be found in the constitution, in international conventions on human and civil rights to which Belgium is a party, and in general legal principles.

1.132  The court before which an annulment proceeding is brought, will examine ex officio whether the arbitral award is contrary to public policy.131 It is not settled whether in assessing the compliance of an arbitral award with public policy, a court may go further in its assessment than the limited scope of review that is possible for the assessment of other grounds (as already discussed).132

1.133  Violation of public policy has been accepted as a ground for annulment in cases in which the arbitration proceedings were considered to violate Article 6 of the European Convention on Human Rights (ECHR), pursuant to which every party is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. As many of the disputes submitted to arbitration concern commercial relationships, rules organizing the economic order (often imposed by international conventions or supranational bodies, for instance at European Community level) may also be a source of public policy.

1.134  However, an incorrect application of, or manifest disregard for, the applicable law by the arbitral tribunal is no ground for annulment. Only if the error of law in itself violates public policy can the arbitral award be annulled.

(p. 40) 1.135  Similarly, failure to correctly appreciate, interpret, or understand the scope and contents of the documents submitted to the arbitral tribunal does not constitute a violation of public policy, unless such failure constitutes proof of the partiality or lack of independence of the arbitral tribunal.133

1.136  While a violation of public policy is one of the grounds most often invoked by parties, very few arbitral awards have actually been annulled on this basis.

Fraud

1.137  The award may be set aside if it was obtained by fraud.134 This includes both fraud within the arbitration proceedings and fraud by the arbitration proceedings (eg when parties arbitrate a fictitious dispute, in order to circumvent a third party’s rights).135

Suspension of the annulment proceedings to allow rectification of the arbitral award

1.138  The court before which an application to set aside is brought may suspend the annulment proceedings at the request of a party in order to allow the arbitral tribunal to reopen the arbitration proceedings or take any other measure that it considers useful to rectify any possible grounds for annulment.136

1.139  As indicated in the travaux préparatoires, this possibility is based on an argument of efficiency and on consideration that the annulment of an award should at all times be the last means to rectify a possible irregularity. If such irregularity can be corrected by the arbitral tribunal that rendered the award, this is to be preferred.137

1.140  When the case is referred back to the arbitral tribunal by the Court of First Instance in accordance with article 1717(6) BCCP, the provisions of article 1713 BCCP (on arbitral awards) and the requirements of article 1715 BCCP apply mutatis mutandis.138 Article 1715 BCCP determines the conditions for applications regarding interpretation, correction, or additional awards.

1.141  First, unless the parties have agreed another term, either party may apply to the (same) arbitral tribunal within one month following receipt of the arbitral award for correction of calculation errors, material errors, spelling errors, or other similar mistakes.139 Similarly, to the extent the parties have agreed on this possibility, a party may apply for interpretation of a certain point or passage of the arbitral award.140 If the arbitral tribunal finds this application to be well founded, any correction or interpretation will become part of the arbitral award and must be issued by the arbitral tribunal within one month of receiving the application.141 This term may, however, be extended by the arbitral tribunal itself if necessary.142 Material errors may also be corrected by the arbitral tribunal on its own motion within one month of the date of the arbitral award143

(p. 41) 1.142  Second, an award may be completed by an additional award, when the arbitral tribunal decided infra petita. While the arbitral tribunal is not required to respond to every detail of the parties’ arguments, it must deal with all issues in dispute. In a situation in which the arbitral tribunal omitted to decide on one or more claims brought in the arbitration,144 and unless excluded by the parties, a party may apply to the (same) arbitral tribunal within one month of the receipt of the arbitral award for an additional award. If the arbitral tribunal finds this application to be well founded, any additional award must be rendered within two months from receipt of the application.145 This term may, however, be extended by the arbitral tribunal itself if necessary.146 The fact that the original deadline for rendering the arbitral award will have expired147 does not prevent the issuing of an additional award.148

1.143  Finally, as indicated here, applications for the correction or interpretation, or for an additional award must, as a principle, be brought before the same arbitral tribunal. However, when it is impossible to convene the same arbitral tribunal to decide on such application, parties may seek the assistance of the Court of First Instance, which will decide in accordance with article 1715(6) BCCP. This implies that in such a case, the Court of First Instance will itself correct, interpret, or complete the award, to the extent it finds that the request has merits.

1.5.4  Local procedures for setting aside/annulment

Competent court

1.144  Proceedings for setting aside an award must be brought before the Court of First Instance of which the seat corresponds with that of the Court of Appeal that would have territorial jurisdiction over the seat of the arbitration. For arbitrations with a seat in Brussels, this is the Court of First Instance of Brussels.149

Standing

1.145  In principle, an application for annulment may be brought only by the parties to the arbitration. Contrary to the situation before the courts, a third party whose rights are affected by a judgment may not rely on articles 1047ff BCCP in order to oppose an arbitral award.

1.146  There is one notable exception with respect to arbitration proceedings affected by fraud: in an exceptional case in which the arbitral proceedings were found to be a sham aimed at circumventing a third party’s rights, the third party not only successfully brought an action to oppose enforcement of the award, but also applied successfully for annulment of the award.150

(p. 42) Limitation periods

1.147  An application to set aside an arbitral award is admissible only when the decision can no longer be contested before the arbitral tribunal.151 This is the case when and to the extent that the arbitral award finally disposes of one or more issues in dispute, regardless of whether this also entails the termination of the proceedings, and moreover, whether the parties did not provide for the option of an arbitral appeal in accordance with article 1716 BCCP.

1.148  An application to set aside an arbitral award must be brought within three months following the notification of the award in accordance with the requirements of article 1678(1)(a) BCCP.152 The only exception is an application for annulment against a decision of an arbitral tribunal to assume jurisdiction: pursuant to article 1690(4) BCCP an annulment application against a decision on jurisdiction may only be brought at the same time as a decision on the merits. An award merely deciding on jurisdiction, even when this decision is final on the issue, is therefore not susceptible for appeal until a decision on the merits is taken. If, however, the issue of jurisdiction is finally dealt with in a partial award153 together with a number of issues on the merits, an application for annulment is possible.

1.149  When a correction, interpretation, or additional award is issued on the basis of article 1715 BCCP, the notification thereof (and not the date of notification of the original award) is taken as starting point for the calculation of the three-month period.154 Upon expiration of the three-month limitation period, the parties are estopped from invoking these grounds to challenge the award.

Course of annulment proceedings

1.150  The party wishing to bring an annulment action must serve a writ of summons on the other parties to appear before the Court of First Instance of the seat, unless these parties agree to appear voluntarily.155 The writ is served by a bailiff and must include the names and addresses of the parties; the object and a short summary of the claims; the competent court; and the time, place, and location of the introductory hearing.156

1.151  At the introductory hearing, a procedural calendar for written submissions is adopted and a hearing date determined. Parties may agree on the procedural calendar among themselves. Failing an agreement, the court will determine the calendar.157

1.152  As discussed in the previous section, the award may be annulled only on the limited grounds set out in article 1717(3) BCCP. When reviewing an application for annulment, the Court will verify ex officio that the award does not contravene Belgian public policy, that the issues in dispute were arbitrable pursuant to Belgian law, and that the arbitral award was not obtained by fraud.158

1.153  Courts are only empowered to set aside an award whole or in part. When deciding to annul an arbitral award, the court may neither modify the content of the decision rendered by the (p. 43) arbitral tribunal, nor order that the award be sent back to the same or to another arbitral tribunal. As discussed earlier, article 1717(6) BCCP constitutes a notable exception to this rule. Pursuant to this article a court may—at the request of a party and before deciding on the application for annulment—suspend the annulment proceedings and refer the case back to the same arbitral tribunal, to allow the arbitral tribunal to take the necessary measures to correct any possible grounds for annulment within a certain term in accordance with article 1715 BCCP. Moreover, if the original arbitral tribunal can no longer convene, parties may apply to the court for assistance.159

1.154  An annulment decision of the Court of First Instance may not be appealed before the Court of Appeal. It is only subject to limited review by the Supreme Court, on limited grounds and limited to errors of law.

1.155  An arbitral award preserves its full effect until a court decides to set it aside in whole or in part. An action to set aside does not therefore suspend ongoing arbitration proceedings or prevent enforcement of the award.

1.156  The effect of a final decision setting aside an award (or part thereof) is that the award or part is annulled and no longer exists. It is then up to the parties to decide how to proceed. In principle, either party may commence new arbitral proceedings on the issues in respect of which the first award was set aside.

Duration

1.157  Proceedings before the Court of First Instance generally last between 12 and 18 months. These decisions are not susceptible to appeal before the Court of Appeal.160

1.158  Recourse against a judgment of the Court of First Instance is only possible before the Supreme Court on the basis of the general provision in article 609 °1 BCCP. As indicated earlier, however, recourse to the Supreme Court will not involve a full review, as it is limited to issues of law. Moreover, proceedings may be brought only on limited grounds. Generally, proceedings before the Supreme Court also last between 12 and 18 months.

Exclusion of the possibility to set aside the award

1.159  The BLA permits foreign parties who wish to avoid any risk of finding themselves before the local courts in annulment proceedings to exclude this possibility by ‘an express declaration’ in the arbitration clause or in a later agreement. When none of the parties is a Belgian national or resident, or a legal person with its seat or a branch in Belgium, the parties may indeed exclude any right to apply for an arbitral award to be set aside.161 This option is therefore only available when parties have chosen a location in Belgium, such as Brussels, as the seat of arbitration, but do not have any specific connection with Belgium themselves. The ‘express declaration’ requirement is, moreover, strictly interpreted: a reference by the parties in the arbitration agreement or in the terms of reference to institutional arbitration rules providing for a general waiver of any right of recourse is not sufficient.

(p. 44) Costs

1.160  The cost of an action to set aside an award is fairly minimal. First, proceedings before the court itself entail barely any cost at all: a nominal filing fee not exceeding a few hundred euros at most must be paid by the party taking the initiative of the proceedings. Second, these and other procedural costs (eg costs those related to service of process) may be recovered by the prevailing party.

1.161  Similarly, compensation for defence costs may be claimed on the basis of article 1022 BCCP. As stated previously, only flat rate compensation is available in Belgian court proceedings, not the actual costs incurred.

1.6  Conclusion

1.162  With a global revision of the BLA in 2013 on the basis of the UNCITRAL Model Law, the Belgian legislature has successfully addressed the criticism of the old law. The result is a modern and progressive arbitration law, which is generally characterized by flexibility and demonstrates the will of the Belgian legislator to provide an efficient framework suitable for a modern business environment within which arbitration can proceed in the best possible circumstances. The fact that this revision has largely adopted the UNCITRAL Model Law—both in terms of content and in terms of wording—not only brings Belgium up to date with the world’s most modern arbitration laws, but enhances the familiarity and accessibility of the law for an international audience.

1.163  The Belgian judiciary has demonstrated a favourable approach to arbitration. Generally, the courts will refrain from intervening in disputes, yet they are available to assist in the arbitral process when the need arises. Finally, the courts’ attitude in proceedings for the setting aside or enforcement of arbitral awards is generally inclined in favour of arbitration. This trend should continue in the coming years in the light of the revision of the BLA, and due to the increased efficiency and specialization as a result of the centralization of all arbitration-related disputes before five Courts of First Instance. This is especially the case for the Brussels courts, which have extensive experience with international disputes in general, and with arbitration proceedings in particular.

1.164  The geographical position of Brussels, its status as an international administrative and business centre, and the relatively low cost of arbitrating in Brussels, further explain why Brussels is increasingly chosen as a seat for arbitration.

Footnotes:

1  One notable attempt in this regard can be found in BCCP, art 1718, pursuant to which parties who have chosen a venue in Belgium as the place of arbitration but who have no further connection with Belgium may exclude any right to apply for an arbitral award to be set aside (see para 1.158).

2  BCCP, art 1676(7).

3  BCCP, art 1676(8).

4  Belgium has 27 courts of first instance and five Courts of Appeal (Antwerp, Brussels, Ghent, Liège, and Mons). Consequently, only the five courts of first instance at the seats of these Courts of Appeal have the competence to hear claims in relation to arbitration. Their territorial jurisdiction is determined on the basis of the place of arbitration—or, if such place is not determined, by the rules of competence that would have applied if no arbitration agreement existed—in the same manner as the Courts of Appeal.

5  BCCP, art 1680(1)–(4).

6  BCCP, art 1680(4) and (5).

7  BCCP, art 609 °1.

8  BCCP, art 1703(1).

9  Travaux préparatoires, DOC (Ch) 53 2743/001, p 6.

10  Travaux préparatoires, DOC (Ch) 53 2743/003, p 8.

11  BCCP, art 1682(2).

12  Travaux préparatoires, DOC (Ch) 53 2743/001, p 15.

13  For a discussion of relevant case law on this issue, see H Van Houtte, K Cox, and S Cools, ‘Overzicht van Rechtspraak: Arbitrage (1972–2006)’(2007) 2 Tijdschrift voor Belgisch Handelsrecht para 39.

14  BCC, art 2045, third para.

15  BCCP, art 1676(1).

16  BCCP, art 1676(2).

17  BCCP, art 1676(4).

18  Supreme Court [2004] (2005) Tijdschrift voor Belgisch Handelsrecht 488, w note M Traest and note P Hollander; Supreme Court [2006] (2007) Tijdschrift voor Belgisch Handelsrecht 889, w note L Mertens; and Supreme Court [2010] (2010–11) Rechtskundig Weekblad 1087–91, w note D Mertens; Supreme Court [2012] (2012) 04 Arresten van het Hof van Cassatie 886.

19  BCCP, art 1676(5).

20  BCCP, art 1721(1)(b)(i).

21  See G Keutgen and G-A Dal, L’arbitrage en droit belge et international—tome 1 (2nd edn, Brussels, Bruylandt, 2006) 180–1.

22  See Keutgen and Dal (n 21) 180–1.

23  Where the parties designated an even number of arbitrators, an additional arbitrator will be added to the arbitral tribunal (BCCP, art 1684(2)). In the absence of an agreement on the number of arbitrators, a three-member tribunal will be appointed (BCCP art 1684(3)).

24  BCCP, art 1684(3) with BCCP, art 1685(3)(a).

25  BCCP, art 1680(1).

26  BCCP, art 1685(3) and (4).

27  BCCP, art 1685(3)(a) and (c).

28  BCCP, art 1680(1).

29  BCCP, art 1685(5).

30  BCCP, art 1680(1), third and fourth paras. As indicated in para 1.48, the possibility to appeal arbitration-related court decisions was abolished by the 2013 revision of the BLA.

31  BCCP, art 1690(1).

32  BCCP, art 1690(2).

33  BCCP, art 1690(4).

34  See Keutgen and Dal (n 21) 330.

35  BCCP, art 1682(1).

36  President of the Court of First Instance Brussels [1989] (1990–91) Rechtskundig Weekblad 676.

37  Case C-185/07 Allianz SpA (formerly Riunione Adriatica di Sicurta SpA) v Generali Assicurazioni Generali SpA/West Tankers Inc [2009] ECR I-663.

38  Council Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L012/1–23.

39  BCCP, art 1709(1).

40  BCCP, art 1709(2).

41  BCCP, art 1709(3).

42  BCCP, art 1686(2).

43  BCCP, art 1687(1).

44  Travaux préparatoires, DOC (Ch) 53 2743/001, pp 19–20.

45  BCCP, art 1680(2). See also Travaux préparatoires, DOC (Ch) 53 2743/001, p 14.

46  BCCP, art 1687(2). See also Travaux préparatoires, DOC (Ch) 53 2743/001, pp 19–20.

47  BCCP, art 1688(1).

48  BCCP, art 1689(1).

49  eg if the challenged arbitrator was named in the arbitration agreement, or if one of the parties refuses to cooperate in the appointment of an arbitrator.

50  BCCP, art 1689(2).

51  BCCP, art 1689(3).

52  BCCP, art 1685(7).

53  BCCP, art 1680(2).

54  BCCP, art 1683; BCCP, art 1691.

55  BCCP, art 1691.

56  BCCP, art 1683.

57  BCCP, art 1698.

58  These can be found in BCCP, arts 1035–1041.

59  BCCP, art 1698.

60  BCCP, art 584.

61  BCCP, art 1683. It is worth noting, however, that for all interim measures or provisional measures relating to evidence, a party must obtain prior leave of the arbitral tribunal pursuant to BCCP, art 1708.

62  BCCP, art 1683.

63  In deviation of the Model Law, parties may always apply to the arbitral tribunal for a modification, suspension, or withdrawal of an interim measure, regardless of whether it was ordered by the arbitral tribunal itself or the (president of the) court, pursuant to BCCP, art 1692 (see Travaux préparatoires, DOC (Ch) 53 2743/001, p 25).

64  BCCP, art 1691, second para.

65  BCCP, art 1693.

66  BCCP, art 1694.

67  BCCP, art 1713(7).

68  BCCP, art 1695.

69  BCCP, art 1696 (see Travaux préparatoires, DOC (Ch) 53 2743/001, p 26).

70  BCCP, art 1697.

71  BCCP, art 1700(3).

72  BCCP, art 1683.

73  BCCP, art 1680(4) with BCCP, art 1708.

74  BCCP, art 1700(5). According to BCCP, arts 1317ff, authentic deeds are documents drawn up by public officials in a legal format, which constitute full proof of the facts contained therein.

75  BCCP, art 1700(5).

76  BCCP, art 1680(4).

77  BCCP, art 1700(5).

78  Under Belgian law parties can apply to the president of the court to obtain an order of production of this document under the conditions set out in BCCP, art 877. In principle, courts may only order production of (a) specific documents, (b) that bear proof of a pertinent fact, (c) provided there are precise, corresponding, and strong presumptions that a party has these documents in its possession. Orders for the production of broad categories of documents or American-style discovery are not available in Belgian court proceedings.

79  Prior to the revision of 2013, BCCP, art 1680 provided that anyone capable of concluding an agreement was entitled to act as arbitrator, with the exception of minors, persons under the supervision of a legal administrator, or persons who do not enjoy full voting rights. While the revised BLA does not contain a provision in this regard, it appears that the same applies.

80  See Travaux préparatoires, DOC (Ch) 53 2743/001, p 17. In practice, agreements regarding the nationality of arbitrators are rather rare. However, some institutional arbitration rules provide that the president of the arbitral tribunal shall in principle have a different nationality from the parties, in order to increase the sense of neutrality (see eg the ICC Rules, Art 13(5)).

81  BCCP, art 1700(1).

82  BCCP, art 1700(2).

83  BCCP, art 1705(2).

84  BCCP, art 1699.

85  BCCP, art 1704(1).

86  BCCP, art 1706(a).

87  BCCP, art 1706(b).

88  BCCP, art 1705(2).

89  BCCP, art 1706(c).

90  BCCP, art 1701(1).

91  BCCP, art 1703(1).

92  BCCP, art 1704 (2).

93  BCCP, art 1700(3).

94  BCCP, art 1700(4), second para.

95  BCCP, art 1713(3).

96  BCCP, art 1713(4).

97  See Travaux préparatoires, DOC (Ch) 53 2743/001, p 37.

98  BCCP, art 1713(5).

99  BCCP, art 1154.

100  BCCP, art 1713(6).

101  BCCP, art 1713(8).

102  BCCP, art 1717(2).

103  BCCP, art 1714(2).

104  BCCP, art 1713(9) with BCCP, arts 1714 and 1717(1).

105  BCCP, art 1713(2).

106  BCCP, art 1716.

107  BCCP, art 1716.

108  BCCP, art 1717(1).

109  BCCP, art 1717(3)(a)(i).

110  BCCP, art 1676(2) with BCC, art 2045.

111  BCCP, art 1676(5).

112  BCCP, art 1717(3)(a)(ii).

113  BCCP, art 1677(1)(2). This also includes electronic forms of communication or transmission.

114  See Court of Appeal Antwerp [1991] (1991) II Pasicrisie belge 108.

115  BCCP, art 1717(3)(a)(ii).

116  BCCP, art 1717(3)(a)(v).

117  BCCP, art 1717(3)(a)(iii).

118  BCCP, art 1717(3)(a)(iv).

119  See Travaux préparatoires, DOC (Ch) 53 2743/001, p 40.

120  See Travaux préparatoires, DOC (Ch) 53 2743/001, p 41. Before the 2013 revision, the old BCCP, art 1704(2)(j) allowed the annulment of an arbitral award that contained contradicting provisions. In the 2013 revision, however, only the lack of motivation element of the old art 1704(2)(i) was retained.

121  BCCP, art 1717(3)(a)(iv).

122  BCCP, art 1717(3)(a)(iv) in fine. See Travaux préparatoires, DOC (Ch) 53 2743/001, p 41.

123  BCCP, art 1717(3)(b)(i).

124  BCCP, art 1676(1).

125  BCCP, art 1676(4).

126  See Law of 3 July 1978 on Employment Contracts, art 13 and BCCP, art 1676(5) pursuant to which an agreement to arbitrate labour disputes, that would normally fall within the competence of the Labour Courts pursuant to BCCP, arts 578–583, may be entered into only after a dispute has arisen.

127  See Law of 25 June 1992 on Land Insurance Contracts, art 36.

128  Supreme Court [2011] (2010–11) Rechtskundig Weekblad 1646–50, w note D Mertens; Supreme Court [2012] (2012) 04 Arresten van het Hof van Cassatie 886.

129  BCCP, art 1717(3)(b)(1).

130  See Keutgen and Dal (n 21) 463.

131  BCCP, art 1707(4).

132  In SNF v Cytec, the Court of First Instance of Brussels annulled an award for violation of public policy (Court of First Instance Brussels [2007] Rev Arb 2007/2, 303–18). On the standard of review to be undertaken by an annulment court, the court held that while it is not up to state courts to reassess the merits of a case, a court should verify, upon reading the award, whether the arbitral tribunal complied with public policy in assessing the facts submitted to it and in the application of the law to these facts. The court recalled that (the old) BCCP, art 1704(2)(a) calls for the annulment of all violations of public policy, and not only obvious, effective, or concrete violations. In the court’s opinion, the standard of such review therefore requires an assessment of the reasoning of the award, not only from a merely formal point of view, but also in terms of its contents. On appeal, however, this judgment was overturned by the Court of Appeal of Brussels on the finding that issues of damages and interest that arise out of the annulment of a contract for violation of a public law provision of European competition law, do not themselves form part of public policy (Court of Appeal Brussels [2009] (2009) 3 Rev arb 574–94). In the light of its finding that there was no ground for annulment, the Court of Appeal did not proceed to a detailed analysis of the question of whether an alleged violation of public policy requires a wider scope of review, as was suggested in first instance by the lower court. This question therefore remains unsettled. See O Caprasse, La jurisprudence du code judiciaire commentée—Volume VI—arbitrage et médiation (La Charte, 2010) 67.

133  Court of First Instance Brussels [1975] (1976) JT 493.

134  BCCP, art 1717(3)(b)(iii).

135  Keutgen and Dal (n 21) 485.

136  BCCP, art 1717(6).

137  See Travaux préparatoires, DOC (Ch) 53 2743/001, pp 41–2.

138  BCCP, art 1715(7).

139  BCCP, art 1715(1)(a).

140  BCCP, art 1715(1)(b).

141  BCCP, art 1715(1)(b).

142  BCCP, art 1715(4).

143  BCCP, art 1715(2).

144  Prior to the 2013 revision, a failure to decide on issue(s) in dispute that cannot be separated from the issues on which the tribunal did decide, constituted a ground for annulment. See the old BCCP, art 1704(2)(e).

145  BCCP, art 1717(4).

146  BCCP, art 1715(4).

147  When the parties did not agree on a deadline for rendering the arbitral award and no award is rendered within six months after the appointment of the last arbitrator, BCCP, art 1713(2) allows the parties to apply to the Court of First Instance to set a deadline for rendering the award.

148  BCCP, art 1715(3). See Travaux préparatoires, DOC (Ch) 53 2743/001, p 39.

149  BCCP, art 1680(6) with BCCP, art 1717(2).

150  Van Houtte, Cox, and Cools (n 13) para 125.

151  BCCP, art 1717(1).

152  BCCP, art 1717(4).

153  ie an award not finally disposing of all issues in dispute, and hence not terminating the arbitral proceedings.

154  See Travaux préparatoires, DOC (Ch) 53 2743/001, p 41.

155  BCCP, art 700.

156  BCCP, art 702.

157  BCCP, art 747(1).

158  BCCP, art 1717(3)(b).

159  BCCP, art 1717(6).

160  BCCP, art 1680(5).

161  BCCP, art 1718.