BELGIUM Law and Practice Contributed by: Nathalie Colin and Florence Frühling, Freshfields LLP
On 25 April 2025, a motion was introduced by mem - bers of the Belgian Green parties in the Belgian Cham - ber of Representatives, calling for: • the restriction or abolition of investor-State arbitra - tion; • the cessation of ratification of new bilateral invest - ment treaties (BITs); and • Belgium’s withdrawal from the Energy Charter Treaty (ECT). An arbitration agreement must reflect the parties’ clear and mutual consent to submit their disputes to bind - ing arbitration (Article 1681 BJC). As with any contract under Belgian law, an arbitration agreement must be supported by valid consent from parties with legal capacity, and it must involve both a lawful object and a legitimate cause. Part VI of the BJC does not require that an arbitration agreement be recorded in a written document. 3.2 Arbitrability 3. The Arbitration Agreement 3.1 Enforceability In principle, all pecuniary claims and non-pecuniary claims that are capable of settlement can be submit - ted to arbitration (Article 1676 BJC). While certain types of disputes are entirely excluded from arbitra - tion (eg, criminal law, tax litigation), others are sub - ject to restrictions. For example, disputes arising from employment contracts and certain insurance contracts can only be referred to arbitration once the dispute has arisen. Intellectual property and consumer disputes are also subject to specific limitations. More - over, claims that are contrary to public policy cannot be submitted to arbitration. In a landmark decision dated 7 April 2023, the Belgian Court of Cassation overturned its previous case law and held that disputes concerning the termination of exclusive distribution agreements may be submitted to arbitration – even when governed by foreign law – provided that the Rome I Regulation applies. Finally, public legal entities may enter into arbitra - tion agreements only to resolve contractual disputes,
unless otherwise authorised by specific legislation or royal decrees. 3.3 National Courts’ Approach Belgian Courts’ Approach as Regards Determining the Law Governing the Arbitration Agreement Under Belgian law, parties are permitted to choose the rules of law applicable to their dispute (Article 1710, Section 1 BJC). This flexibility notably allows them to designate rules developed by international bodies that have not yet been incorporated into national law (eg, the United Nations Convention on Contracts for the International Sale of Goods). If no law is specified, it is the arbitral tribunal – not the national courts – that will select the most appropriate rules of law (Article 1710, Section 2 BJC). Belgian Courts’ Approach as Regards Enforcement of Arbitration Agreements Belgian courts generally adopt a pro-arbitration approach, enforcing arbitration agreements where the parties’ intent to arbitrate is clear. They will refuse to enforce an arbitration agreement only on limited grounds, such as where: • the agreement is invalid or has been terminated; • one or both parties lacked the legal capacity to contract; • the dispute falls outside the legally permissible scope of arbitration (“non-arbitrability”); or • enforcement would contravene public policy (Arti - cles 1682, 1717 and 1721 BJC). Enforcement may also be denied if the arbitration agreement is irreparably pathological or grants one party undue influence over the constitution of the arbi - Article 1690, Section 1 BJC enshrines the principle of separability, according to which the arbitration clause is independent from the main contract. This separa - tion ensures that any defects in the main contract do not affect the arbitration agreement. Consequently, the nullity of the main contract does not automatically invalidate the arbitration agreement. tral tribunal. 3.4 Validity
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