BELGIUM Law and Practice Contributed by: Nathalie Colin and Florence Frühling, Freshfields LLP
4. The Arbitral Tribunal 4.1 Limits on Selection
entire arbitral tribunal (Article 15, Section 5 CEPANI Arbitration Rules (the “CEPANI Rules”); Article 12, Section 8 ICC Arbitration Rules (the “ICC Rules”)). 4.3 Court Intervention Belgian courts may only intervene on a subsidiary basis in the selection of arbitrators if the parties’ agreed procedure fails or no procedure has been set. In such cases, the President of the Court of First Instance may, upon unilateral request, take the nec - essary measures to constitute the arbitral tribunal (Article 1680, Section 1 BJC). The Court’s decision is generally final and not subject to appeal, except when it refuses to make an appointment. This judicial inter - vention is limited to situations where the parties have not provided an alternative mechanism or where the designated institution fails to perform its role. Accord - ingly, such intervention is unlikely where the parties have opted for a reputable arbitral institution. 4.4 Challenge and Removal of Arbitrators An arbitrator may be challenged if: • there are well-founded doubts as to their inde- pendence or impartiality; or • they lack the qualifications agreed upon by the par - ties (Article 1686, Section 2 BJC). The BJC does not list specific grounds for challenging an arbitrator; however, clear conflicts (such as close personal or professional ties to a party or its coun - sel) or ongoing disputes are generally disqualifying. Challenges must be raised promptly, within 15 days of becoming aware of the relevant facts, and can - not be based on circumstances known at the time of appointment. 4.5 Arbitrator Requirements Arbitrators, like judges, must be independent and impartial throughout the entire arbitration process. They cannot have personal, professional or financial ties with a party, and must disclose any circumstances that could raise doubts about their neutrality, both at the time of appointment and during the proceedings (Article 1686, Section 1 BJC). Both the CEPANI Rules (Article 14) and the ICC Rules (Article 11) require arbi - trators to sign a declaration of independence and to report any new conflicts immediately.
Parties are free to determine the procedure for select - ing arbitrators provided that both are treated equally with respect to this selection (Article 1685, Section 2 and Article 1699 BJC). They are also not bound by specific selection criteria as long as the arbitrators are independent, impartial and legally capable of perform - ing legal acts. Although the BJC does not impose specific ethical or disciplinary rules, arbitrators must adhere to the ethical standards of their profession (focusing on independence, impartiality, competence, availability, diligence and confidentiality). In line with this autonomy, the parties can agree on restrictions regarding the arbitrator’s qualifications or nationality (eg, parties to an international contract may require that the sole arbitrator or chair of the arbitral tribunal is of a different nationality than the parties). 4.2 Default Procedures Default Procedure When the Parties’ Chosen Method for Selecting Arbitrators Fails If the procedure agreed upon by the parties fails, any party may request the President of the Court of First Instance to appoint or replace an arbitrator (Article 1685, Section 4 BJC). If the parties have simply not agreed on any procedure for selecting arbitrators, the default rule is that each party will appoint one arbitrator, and the two appoint - ed arbitrators will appoint a third one or the President of the Court of First Instance will appoint the arbitral tribunal, depending on the number of arbitrators to be appointed (Article 1685, Section 3 BJC). The Specific Case of Multiparty Arbitrations The BJC does not provide any specific default proce - dure in the case of multiparty arbitrations. CEPANI and the ICC – ie, the arbitration institutions most commonly relied upon in Belgium – have adopt - ed default rules to ensure party equality in multiparty arbitrations. Where parties on one side cannot jointly nominate an arbitrator, the institution will appoint the
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