The Belgian arbitration legislation dates from 1972. It is contained in Articles 1676–1723 of the Code Judiciaire/Gerechtelijk Wetboek (“the Judicial Code”). It is based on the Model Law annexed to the Strasbourg Convention of 20 January 1966.

The Belgian legislation on arbitration was amended twice:

• by the Law of 27 March 1985 concerning the annulment of arbitral awards, which provided that Belgian courts could hear applications to set aside an award only if one of the parties to the dispute was either an individual with Belgian nationality or having a residence in Belgium, or a legal entity incorporated in Belgium or having a branch or place of business there; and
• by the Law of 19 May 1998, which replaced the amendments introduced by the 1985 statute in relation to proceedings for the setting aside of an award with a system of opting-out. It also introduced a number of amendments into the existing legislation, several of which were derived from the UNCITRAL Model Law, as well as from Dutch, French and Swiss arbitration law, in order to make the legislation more flexible, to improve its efficiency and, generally speaking, to adapt it to the evolution of international arbitration.

The Belgian arbitration legislation also reflects the provisions of certain International Conventions to which Belgium is party. For example, the New York and Geneva Conventions were implemented in Belgian legislation. Belgium has also signed bilateral agreements on recognition and enforcement of arbitral awards with France, the Netherlands, Germany, Switzerland and Austria. It is also relevant to note that on 21 June 1985, the United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Model Law on international commercial arbitration and the UNCITRAL Notes concerning the organisation of the arbitral procedures.

Scope of application
The Belgian arbitration legislation does not contain any provisions concerning its scope of application. In accordance with general principles of Belgian law, its procedural rules normally apply to all arbitration proceedings taking place in Belgium, unless the parties have expressly or by implication excluded application of all or part of such rules, for example, by making reference to institutional arbitration rules. However, if the arbitration has its seat in Belgium, the exclusion of Belgian procedural rules will only be valid to the extent that the excluded provisions are not of mandatory character.

General principles
The Belgian legislation is founded on the following principles:

• equality of the parties and due process;
• party autonomy;
• non-intervention by local courts;
• the parties’ freedom to determine the arbitral procedure;
• confidentiality; and
• flexibility.

Formal requirements
Besides the conditions which have to be fulfilled for any contract, according to Article 1677 of the Judicial Code, an arbitration agreement shall be in writing and signed by the parties, or be contained in other documents which are binding on the parties and evidence their intention to refer their disputes to arbitration. Article 1677 of the Judicial Code has been construed by the courts, however, as a rule ad probationem and non ad validatem, i.e. it is a rule of evidence and the parties’ failure to fulfil these formal requirements does not affect the validity of the arbitration agreement. In other words, subject to the more stringent requirements of Article II (2) of the 1958 New York Convention (whenever applicable), an oral arbitration agreement is perfectly valid under Belgian law, although its existence may be difficult to prove if one of the parties denies having entered into the agreement.

Other requirements
According to Article 1678 of the Judicial Code, an arbitration agreement shall not be valid if it gives one of the parties thereto a privileged position with regard to the appointment of the arbitrator or arbitrators.

Arbitrability
Like most legal systems, Belgian law contains provisions which restrict, to a limited extent, the possibility for the parties to arbitrate certain types of disputes (objective arbitrability) or for the State or public legal entities to enter into an arbitration agreement (subjective arbitrability).

Objective arbitrability
The arbitrability of commercial disputes is widely recognised in Belgium. According to Article 1678 of the Judicial Code, any dispute which has arisen or may arise out of a specific legal relationship, and which is capable of settlement by arbitration, may be the subject of an arbitration agreement.

Subject to certain restrictions and limitations which are generally recognised in most European countries, and which reserve exclusive competence over certain issues to the European Court of Justice or national courts or authorities, even antitrust, intellectual property and bankruptcy disputes are arbitrable.

Specific legislation restricts the arbitrability of disputes in certain areas of law, such as:

• labour law (see Article 13 of the Law of 3 July 1976 on employment contracts; and also Article 1678.2 of the Judicial Code, pursuant to which an agreement to arbitrate labour disputes falling within the competence of the Labour Courts as determined by Articles 578 to 583 of the Judicial Code may only be concluded after the dispute has arisen);
• insurance law (see Article 36 of the Law of 25 June 1992 on insurance contracts); or
• the Law of 28 March 1984 on patents (disputes relating to mandatory licences are excluded from arbitration).

The legal position is not, however, always entirely clear. For example, there is some debate as to the arbitrability of disputes arising from the termination of exclusive distributorship agreements of indefinite duration (see the Law of 27 July 1961); and in relation to the Law of 13 April 1995 on commercial agents, although in this latter case the overwhelming majority of legal commentators seem (rightly in our view) to consider that such disputes are arbitrable.

Subjective arbitrability
According to Article 1676.2 of the Judicial Code, “Anyone who has the capacity or power to contract may conclude an arbitration agreement.” The prohibition against public legal entities concluding arbitration agreements, which previously existed under the Judicial Code, has been deleted. According to the new Article 1676.2, public legal entities are authorised to conclude an arbitration agreement, provided that it relates to the settlement of disputes regarding the formation or the performance of a contract. The validity of an arbitration agreement is determined in accordance with the same conditions as the underlying agreement, whose performance forms the subject matter of the arbitration agreement. Furthermore, public legal entities may conclude an arbitration agreement in respect of any matter determined by law or by a Royal Decree deliberated by the Council of Ministers. The Royal Decree may also determine the conditions and the rules to be complied with in relation to the conclusion of the agreement.

Belgium is also a party to the 1961 Geneva Convention, whose Article II (1) provides that “[i]n the cases referred to in Article I (1) of this Convention, legal persons considered by the law applicable to them as legal persons of public law have a right to conclude valid arbitration agreements.”

Separability of the arbitration agreement
According to Belgian law, an arbitration clause is entirely autonomous from the underlying commercial agreement. Therefore, unless the arbitration clause itself can be avoided, it remains valid even if the underlying agreement is null and void or has been terminated. Article 1697, Paragraph 2 of the Judicial Code provides that “[a] ruling that a contract is invalid shall not ipso jure entail the nullity of the arbitration agreement contained in it.” In other words, the validity of the arbitration clause has to be determined separately from the validity of the main agreement.

Constitution of the arbitral tribunal
According to Article 1681 of the Judicial Code, the arbitral tribunal must be composed of a sole arbitrator or another uneven number of arbitrators.

The arbitrator or arbitrators are appointed by the parties themselves or by an arbitral institution as provided by the parties in their arbitration agreement.

The challenge of arbitrators and the appointment of substitute arbitrators
Arbitrators may be challenged when circumstances exist that give rise to justifiable doubts as to their impartiality or independence. However, a challenge is possible only for reasons of which a party becomes aware after the appointment has been made (Article 1690). When institutional arbitration rules apply, the challenge is normally governed by the procedures contained in these arbitration rules. In an ad hoc arbitration, Article 1691.2 of the Judicial Code provides for notification of the challenge to the arbitrator concerned. If he does not resign, the issue must be brought before the Court of First Instance (“Tribunal de Première Instance”) by the party bringing the challenge. The decision of the court may be appealed.

If the arbitrator resigns, or if the challenge is allowed by the court, the arbitrator shall be replaced according to the same rules as those pursuant to which he was appointed. However, if he has been named in the arbitration agreement, the agreement shall terminate ipso jure, unless the parties have provided otherwise.

Arbitrators’ fees, expenses and immunity
There is no specific provision in Belgian arbitration law which deals with the issue of arbitrators’ fees and expenses. It is therefore up to the parties to determine in their arbitration agreement how the fees and expenses will be advanced by and finally allocated between the parties. If the arbitration agreement does not address this issue, it is generally accepted that the arbitrators themselves have the power to determine the amount of their fees as well as the party or parties who will finally bear them. In practice, the general rule is that “costs follow the event” (i.e. the losing party pays).

As regards arbitrations conducted under the rules of an arbitral institution, the matter will generally be dealt with subject to the rules of the relevant arbitration institution.

There is no general immunity protecting arbitrators from claims by the parties. Arbitrators may be liable in case of wrongful performance of their duties (e.g. noncompliance with certain deadlines; refusal to file the original copy of the award with the Court of First Instance; failure to decide certain issues; and non-observance of certain mandatory provisions relating to the award). As in any other case of wrongful performance, the claimant will have to prove the existence of a default committed by the arbitrator, the existence of damage and the causal link between the default and the damage.

Competence to rule on its own jurisdiction
Pursuant to Article 1697.1 of the Judicial Code, “[t]he arbitral tribunal may rule on its own jurisdiction and may, for this purpose, examine the validity of the arbitration agreement.” Article 1697.3 further provides that “[t]he 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 … .” Arbi­trators therefore have competence to rule on their own jurisdiction (principle of “Kompetenz-Kompetenz”). However, such a ruling is subject to judicial control.

Power to order interim measures
Article 1696.1 of the Judicial Code (inserted into the Code by the 1998 Law) gives arbitrators the power to order interim or protective measures, with the exception of an attachment of goods (which remains within the exclusive jurisdiction of the courts).

However, this provision does not bar the parties from introducing an action for interim or protective measures before the State courts (Article 1679.2 of the Judicial Code). This applies, in particular, in the case of urgent matters when, for example, the arbitral tribunal has not been constituted or is unable to act with sufficient expediency. However, once the arbitral tribunal is constituted, the Belgian courts will generally refuse to entertain jurisdiction in relation to interim measures, save in very exceptional cases (justified by urgency and/or efficiency).

Commencement of arbitration
Article 1683 of the Judicial Code provides that a party who wishes to initiate arbitration proceedings must give notice to the other party. The notification, which will take the form of a request (“requête”), must refer to the arbitration agreement and specify the subject matter of the dispute.

Where more than one arbitrator has to be appointed by the parties, the notification must also specify the name(s) of the arbitrator(s) to be appointed by the claimant. It must also contain an invitation to the respondent to nominate the arbitrator(s) he intends to appoint. If the panel is to be appointed by a third party (e.g. an arbitration institution, the court, or another appointing body), that third party should also be notified and invited to make the required appointment(s).

Article 1683.4 further provides that the appointment of an arbitrator may not be withdrawn once notification has been given. The notification must be in writing and sent by registered post (Article 32 of the Judicial Code). It has the effect of setting the arbitration proceedings in motion.

General procedural principles and the place of arbitration
Article 1693 of the Judicial Code provides that “[w]ithout prejudice to the provi­sions of Article 1694, the parties may agree on the rules of the arbitral procedure and on the place of arbitration.” The parties and the arbitral tribunal are free to organise the arbitral procedure as they see fit, as long as the procedure respects the principle of equality between the parties, the right of defence and the right to a fair hearing.

Failing such an agreement between the parties within the time limits fixed by the tribunal, the arbitral procedure and the place of arbitration are determined by the arbitrators. If the place of arbitration has not been fixed by the parties or the arbitrators, the place stated in the award shall be deemed to be the place of arbitration.

Unless the parties have agreed otherwise, the arbitral tribunal may, after consultation with the parties, hold hearings and meetings at any other place which seems appropriate (Article 1693 Paragraph 2 of the Judicial Code).

The chairman of the arbitral tribunal presides at the hearings and conducts the proceedings.

Pursuant to Article 1694.1, the arbitral tribunal shall “give each party an opportunity to substantiate his claims and to present his case.” Article 1694.4 further provides that each party may appear in person or be represented by a lawyer or any person of his choice, approved by the arbitral tribunal.

Procedural powers of the tribunal
Pursuant to Article 1696.2 of the Judicial Code, the arbitral tribunal is free to determine the admissibility of evidence and its evidentiary weight, unless the parties have agreed otherwise. Article 1696.3 of the Judicial Code provides that the arbitral tribunal may order the hearing of witnesses, an appraisal by experts, a site visit and the appearance of parties in person. It may also accept an oath as being decisive or may request a supplementary oath. Finally, it may order the production of documents held by a party in accordance with the conditions provided in Article 877 of the Judicial Code.

The tribunal may not, however, order the verification of signatures or order the production of documents held by a third party. In these cases, the tribunal will leave it to the parties to take the matter to the Court of First Instance for a ruling and the arbitration will ipso jure be suspended until the date on which the arbitral tribunal receives notification of the final decision on the matter.

Finally, Article 1709bis of the Judicial Code authorises the arbitrators to impose a fine (“astreinte”) on a party which does not comply with its decisions or orders. This unusual feature of the Belgian legislation has proven very effective in persuading parties to comply with arbitral decisions/orders. In the event of noncompliance, the fine has to be paid to the other party. Astreintes may not be imposed, how­ever, to ensure compliance with decisions ordering the payment of sums of money.

Language of the arbitration
The language of the arbitration is determined by the parties. It is quite common in Belgium to have arbitration proceedings conducted in more than one language (e.g. French and English).

Third party intervention and consolidation of proceedings
Pursuant to Article 1696bis. 1, any affected third party may upon written request addressed to the arbitral tribunal intervene in the arbitration proceedings. The arbitral tribunal shall communicate the request to the parties. Pursuant to Article 1696bis. 2, a party may also serve a notice of intervention to a third party.

In order to be admitted, the intervention or joinder of a third party requires an arbitration agreement between the third party and the original parties to the dispute. Furthermore, it is subject to the unanimous consent of the arbitral tribunal.

As far as multi-party arbitrations and consolidation of proceedings are ­concerned, the solution contained in Article 12 of the Arbitration Rules of the Belgian Centre for the Study and Practice of National and International Arbitration (CEPANI) is worth mentioning. It provides as follows:

“When several contracts containing the CEPANI arbitration clause give rise to disputes that are closely related or indivisible, the Appointments Committee or the Chairman of CEPANI shall be empowered to order the consolidation of the arbitration proceedings. This decision shall be taken, either at the request of the arbitrator or arbitrators, or, prior to any other measure, at the request of the parties or of the earliest petitioner, or even on CEPANI’s own motion.

If the request is granted, the Appointments Committee or the Chairman of CEPANI shall appoint the arbitrator or arbitrators who shall decide the consolidated disputes. If necessary, the said Committee or said Chairman shall increase the number of arbitrators to a maximum of five.

The Appointments Committee or the Chairman of CEPANI shall make their decision after having summoned the parties and, if need be, the arbitrators already appointed.

They may not order the consolidation of disputes in which an interim award, or an award on admissibility, or an award on the merits of the claim has already been rendered.”

Submissions, oral hearings and written proceedings, default by parties
According to Article 1694 of the Judicial Code, the arbitral tribunal shall give each party an opportunity to substantiate its claims and to present its case. It will usually render its award after holding an oral hearing, although the procedure may be in writing where the parties have so agreed or if they have waived the requirement for an oral hearing.

Default proceedings are dealt with in Article 1695, which provides that if, without legitimate cause, a party properly summoned does not appear, or does not present its case at the date fixed for the hearing, the arbitral tribunal may proceed and render an award, unless the other party requests a postponement.

Evidence
While it is not common to call witnesses in court proceedings in Belgium, this is, however, becoming more and more common in arbitration proceedings, especially if the parties have elected to follow a common law type of procedure.

By providing in the new Article 1696.2 that “[u]nless the parties have agreed otherwise, the arbitral tribunal is free to determine the admissibility of evidence and its evidentiary weight,” the legislator intended to allow maximum flexibility in the organisation of the arbitral procedure.

Choice of law
The section on arbitration in the Judicial Code does not contain any rules regarding the choice of the law applicable to the substance of the dispute. This issue is governed by the general conflict of law rules under Belgian law. If the parties have agreed to submit their dispute to a specific law, this choice will be upheld by the arbitral tribunal. However the arbitrators may not apply a provision which derogates from Belgian public policy. In the absence of such a choice, the arbitral tribunal will determine the applicable law.

Procedure
In an institutional arbitration, the procedure will be determined by the arbitration rules of the relevant institution.

The terms of reference agreed upon by the parties will often provide that, for any matters which are not covered by the chosen institutional rules, the procedure will be determined by the arbitral tribunal after consultation with the parties. In this case, the procedural rules of the seat of the arbitration will be of subsidiary relevance and will apply only to the extent that they are mandatory.

In ad hoc arbitration proceedings, the parties will generally refer to the rules of arbitration procedure contained in the sixth part of the Judicial Code or to the UNCITRAL Arbitration Rules.

Merits
Article 1700 of the Judicial Code provides that, unless the parties have agreed otherwise, the arbitrators shall decide a dispute in accordance with the chosen rules of law.

The parties may agree in the arbitration agreement that the arbitrators will settle the dispute as “amiable compositeur”. The possibility for the arbitral tribunal to sit as amiable compositeur is no longer restricted, except when a public legal entity is a party to the arbitration agreement. In that case, the arbitrator must apply strict rules of law (except if a law expressly authorises the arbitral tribunal to sit as amiable compositeur). Under the former Article 1700, a provision stating that the arbitrators would decide the case as amiables compositeurs was valid only if agreed upon after the dispute had arisen.

Decisionmaking by the tribunal
Although it is quite unusual, the parties may set out in their arbitration agreement the rules to be followed by the arbitrators in order to reach a decision. In the absence of such an agreement, Articles 1701.1–1701.3 of the Judicial Code set out the following rules:

• all the arbitrators have to participate in the deliberations;
• the decision must be made by an absolute majority of votes except if otherwise agreed by the parties;
• the parties may give the chairman of the tribunal a casting vote, in case no majority can be found; and
• on monetary matters, if a majority cannot agree on a specific amount, the votes expressed for the highest amount shall be counted as votes for the next lowest sum, until a majority is obtained.

In addition, it is important to note that dissenting opinions are not authorised in Belgium and that the deliberations of the tribunal are confidential.

Form, content and effect of the award
An award must be in writing and must be signed by the arbitrators, or at least by a majority of them. If an arbitrator is unable or unwilling to sign, that fact must be recorded in the award (no reasons are necessary). A majority of the arbitrators has to sign the award.

In addition to the operative part, the award must contain the following ­information (Article 1701.5):

• the name and address of the arbitrator(s);
• the names and addresses of the parties;
• a description of the subject matter of the dispute;
• the date on which the award was made; and
• the seat of the arbitration and the place where the award was made.

The reasons for the award must be stated (Article 1701.6), even where the arbitrators act as amiables compositeurs. The parties may not discharge the arbitrators from this obligation.

The chairman of the tribunal must notify the parties of the award (by sending them a signed copy of the award) and deposit the original award with the registrar of the Court of First Instance of the place of the arbitration (Article 1702). The parties may waive this latter requirement.

Unless the award is contrary to public policy, or the dispute was not capable of settlement by arbitration, an arbitral award has the force of res judicata once it has been notified to the parties and may no longer be contested before the arbitrators (Article 1703).

Even in the event that the parties have agreed in their arbitration agreement that an award can be appealed, that award may still be provisionally enforced, notwithstanding the existence of any appeal, if the arbitrators have so ordered. The arbitral tribunal may also order that the provisional enforcement of the award shall be subject to provision of a guarantee (Article 1709).

Settlement
The parties may settle their dispute at any time. At their request, the arbitral tribunal may record their settlement in a consent award. The parties should include in their settlement a provision for the final allocation of the costs of the arbitration between them.

Termination of proceedings
According to Article 1702.3 of the Judicial Code, the arbitrators’ appointment comes to an end when the final award terminating the proceedings has been notified to the parties and deposited with the registrar of the Court of First Instance (save where the parties have waived this latter requirement).

Costs
The Judicial Code does not deal with the issue of the costs of the arbitration. It is up to the parties to provide for the allocation of costs in their arbitration agreement. If there is no such provision, the final allocation of the costs of the arbitration will be decided upon by the arbitrators.

Correction and interpretation of the award
Article 1702bis contains the rules applicable to the correction or interpretation of the award.

Any party may, within 30 days of notification of the award (unless the parties have agreed another time limit), request the tribunal to correct any clerical error, error in computation, typographical error or any other error of a similar nature in the award. If so agreed by the parties, a party may request the arbitral tribunal to give an interpretation of a specific point or part of the award. In both cases, the request must be notified to the other party.

If the tribunal considers the request to be justified, it shall make the correction or give the interpretation within 30 days of receipt of the request (or within such extended period of time as decided by the tribunal). The tribunal’s decision is deemed to be a part of the award.

The tribunal may also, within 30 days of the award, correct the award on its own initiative.

When it is no longer possible to bring together the arbitrators, the request for correction or interpretation of the award shall be made to the Court of First Instance whose President has jurisdiction to grant the exequatur in accordance with the provisions of the Judicial Code (see further below).

The jurisdiction of the courts
According to Article 1717 of the Judicial Code, the court designated in the arbitration agreement or in a later agreement, concluded before the parties have chosen the place of arbitration, is competent to apply the arbitration provisions of the Judicial Code. In the absence of such an agreement between the parties, the court which has jurisdiction is the court of the place of the arbitration.

If the parties have not chosen a place of arbitration, jurisdiction lies with the court which would have been competent to decide the dispute had it not been submitted to arbitration.

Various provisions of the Judicial Code give competence to local courts to deal with specific issues upon application by one of the parties, including:

• appointment of an arbitrator (Article 1684);
• challenge of an arbitrator (Article 1691);
• refusal of a witness to appear (Article 1696.4);
• verification of signatures, objections relating to the production of documents or the alleged falseness of documents (Article 1696.5); and
• determination of the time period within which the award must be rendered (Article 1698).

Stay of court proceedings
Under Article 1679.1 of the Judicial Code, 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.” Article 1679.1 further provides that such an objection of lack of jurisdiction must be raised in limine litis, i.e. before any arguments are advanced on the merits.

A party to a valid arbitration agreement may, therefore, invoke lack of jurisdiction if the other party starts court proceedings in relation to a matter which is the subject of an arbitration agreement. This is in line with the provision in Article II of the 1958 New York Convention.

Preliminary rulings on points of jurisdiction
As already mentioned above, the arbitral tribunal is competent to determine its jurisdiction to decide a dispute, subject to judicial review in the context of the procedure for setting aside an award.

Interim protective measures
Article 1679.2 of the Judicial Code provides that an application to the court for conservatory or provisional (interim) measures is not incompatible with an arbitration agreement and shall not imply a waiver of the agreement. Such an application can also be made in the course of arbitration proceedings if it were not possible or practicable to convene a session of the arbitral tribunal in time for the purpose of granting an interim protective measure.

Obtaining evidence
When the tribunal has ordered a hearing and the witnesses do not appear voluntarily, or refuse to take the oath or to testify, the arbitral tribunal will authorise the parties or one of them, to request the Court of First Instance to appoint a juge-commissaire who will be in charge of hearing the testimony (Article 1696.4). It is also possible, albeit unusual, for a party to the arbitral proceedings to apply to the local courts to obtain an order for the production of documents, especially from a third party.

The Law of 27 March 1985 eliminated the possibility of setting aside an award made in Belgium when none of the parties was an individual with Belgian nationality or had a residence in Belgium, or a legal entity incorporated in Belgium or having a branch or place of business in Belgium. This provision has, however, been repealed by the 1998 Law.

The new Article 1717.4 of the Judicial Code now provides that: “The parties may, by an express statement in the arbitration agreement, or by a subsequent agreement, exclude any right to apply for an arbitral award to be set aside when none of the parties is an individual having Belgian citizenship or who resides in Belgium, or a legal person having its principal place of business or a branch there.”

The notion of an “express statement” in Article 1717.4 is strictly interpreted: a reference by the parties in the arbitration agreement or in the terms of reference to arbitration rules which provide for a waiver of any right of recourse does not amount to such an “express statement”. Parties wanting to waive all rights to challenge the award should, therefore, state expressly that they waive all rights to apply to have the award set aside, either in their arbitration agreement, or later, for example, in their terms of reference.

Assuming that the parties have not waived their right to challenge the award, they may launch such a challenge only in the cases mentioned in Article 1704 of the Judicial Code. The grounds for setting aside the award are listed in Article 1704 of the Judicial Code:

• the award is contrary to public policy;
• the non-arbitrability of the dispute;
• the non-existence of a valid arbitration agreement;
• the arbitral tribunal exceeded its jurisdiction;
• the arbitral tribunal failed to decide one or more of the issues in dispute;
• irregularity in the constitution of the arbitral tribunal;
• the arbitral tribunal failed to observe a mandatory rule of arbitral procedure;
• the arbitral tribunal disregarded the formalities set out in Article 1701.4 (which provides that an award shall be in writing and signed by the arbitrators; that if one or more arbitrators are unable or unwilling to sign, this must be recorded in the award; that the number of signatures on the award must at least represent a majority of the arbitrators);
• absence of reasons or contradictions in the reasons; or
• award obtained by fraud.

Applications to set aside an award are, however, very rare. Those applications that are made are rarely successful.

Proceedings for setting aside an award are commenced by way of request (requête) before the Court of First Instance (Tribunal de Première Instance). The decision of the Court is subject to appeal.

Reference should finally be made to Article 1703.2 of the Judicial Code which provides that an appeal against an arbitral award may only be made if the parties have expressly provided for such a possibility in the arbitration agreement. Such provisions are unusual except in some industry-specific arbitrations.

Domestic awards
The enforcement of domestic awards is governed by Articles 1710–1718 of the Judicial Code.

In order to be enforceable, a domestic award must be granted exequatur (a formal authorisation of enforcement) by the President of the Court of First Instance of the place of the arbitration, acting upon the request of one of the parties. At this stage, the party against whom enforcement is sought is not a party to the application.

The petitioner must submit the original award and the original arbitration agreement, or certified copies thereof, as well as sworn translations in the ­language of the relevant region (depending on the circumstances, French, Flemish or German), if it is in a language other than that used in the courts of that region.

The President of the Court will grant the exequatur when the award is no longer open to appeal before the arbitrators or if the latter have made an order granting provisional enforcement notwithstanding an appeal. The President’s decision is enforceable notwithstanding the existence of any appeal.

The President of the Court shall dismiss the request if the award or its enforcement is contrary to public policy or if the dispute was not capable of settlement by arbitration. If the request is dismissed, the petitioner may, within one month of the notification of the dismissal of the request, lodge an appeal against the ­decision before the Court of Appeal. The party against whom enforcement is sought receives notification of the appeal and the proceedings thereafter continue inter partes.

If the President of the Court grants the exequatur, his decision must be served on the party against whom enforcement is sought. The latter has one month from the date of such service to appeal the decision (opposition). The appeal is heard by the Court of First Instance. Its decision is subject to appeal by the losing party to the Court of Appeal.

Foreign awards
Belgium has ratified the 1958 New York Convention.

In relation to awards originating from countries which have not ratified the 1958 New York Convention, the enforcement procedure is set out in Articles 1719–1723 of the Judicial Code, whose provisions are to a large extent similar to those applicable to the enforcement of domestic awards. A party seeking enforcement of a foreign award may always base its request on these provisions, in accordance with Article VII of the 1958 New York Convention, even if the latter would apply, if it considers that the above rules are more favourable than those contained in the New York Convention.

The request for exequatur must be submitted to the President of the Court of First Instance of the place where the party against whom enforcement is sought has its domicile or residence, or if it has no domicile or residence in Belgium, of the place where the award will be enforced.

The petitioner must submit the original award and the original arbitration agreement, or certified copies thereof, as well as sworn translations of the said documents where required.

Unlike in the procedure for the enforcement of domestic awards, the President of the Court may call the parties to make submissions on the request. However, even in the unusual event that he takes this step, the procedure remains ex parte at this stage.

The President of the Court refuses to grant exequatur if:

• the arbitral award is still open to appeal before the arbitrators and if the arbitrators have not ordered provisional enforcement notwithstanding any such appeal;
• the award or its enforcement is contrary to public policy;
• the dispute was not capable of settlement by arbitration; or
• there is a ground for setting aside the award as provided for in Article 1704.

If the application is refused, the petitioner may, within one month of the notification of the dismissal of the request, lodge an appeal against the decision at the Court of Appeal. The appeal has to be notified to the party against whom enforcement is sought and the proceedings thereafter continue inter partes.

If the President of the Court grants exequatur, his decision must be served on the party against whom enforcement is sought. The latter has one month from the date of service to appeal the decision (opposition). The appeal will be heard by the Court of First Instance. Its decision is subject to appeal to the Court of Appeal.

All decisions of the Court of Appeal are subject to review by the Supreme Court (“Cour de Cassation”) in a very limited number of cases (violation of a point of law or of substantial legal formalities).

The Belgian law on arbitration may be characterised as modern and flexible. It gives the parties wide discretion as to the arbitral procedure to be followed.

There is no tradition in Belgium of intervention by local courts in arbitration proceedings. Moreover, the courts’ attitude in proceedings for the setting aside or enforcement of arbitral awards is invariably inclined in favorem arbitrandum. This probably explains why Brussels is more and more frequently chosen as the seat of major international arbitrations.

CMS DeBacker
Chaussée de La Hulpe 178
1170 Brussels, Belgium


Marie Canivet
T +32 2 743 69 16
F +32 2 743 69 01
E marie.canivet@cms-db.com


André Lombart
T +32 2 743 69 15
F +32 2 743 69 01
E andre.lombart@cms-db.com