BELGIUM Law and Practice Contributed by: Nathalie Colin and Florence Frühling, Freshfields LLP
In practice, the IBA Guidelines on Conflicts of Interest in International Arbitration – though not legally binding – are widely accepted as the international standard. They are frequently used by practitioners and arbitral institutions – including in Belgium – as a benchmark for assessing arbitrators’ independence and disclo - sure. While independence is not a matter of public policy and may therefore be waived, such waiver must be informed (ie, parties must be aware of the circum - stances that could give rise to a challenge) and prefer - ably documented. Article 1690, Section 1 BJC enshrines in Belgian law the principle of Kompetenz-Kompetenz , granting arbi - tral tribunals the power to decide on their own juris - diction independently and without prior court involve - ment. 5.2 Circumstances for Court Intervention The BJC gives the arbitral tribunal the possibility to rule on its own jurisdiction and only provides for lim - ited circumstances in which Belgian courts may inter - vene with respect to the arbitral tribunal’s jurisdiction. Court Intervention Before and Pending Arbitration Proceedings Belgium courts may be required to assess the jurisdic - tion of an arbitral tribunal in the context of proceed - ings on the merits of a dispute where an arbitration clause exists between the parties (Article 1682, Sec - tion 1 BJC). In such case: 5. Jurisdiction 5.1 Challenges to Jurisdiction • the defendant may invoke the existence of an arbi - tration agreement to object to the jurisdiction of the court (exceptio arbitri); and • the court will then assess the validity of that arbi - tration agreement (and thus the jurisdiction of the arbitral tribunal). Importantly, such assessment does not preclude the arbitration proceedings from being initiated or contin -
ued if already initiated in parallel (Article 1682, Section 2 BJC). There is no precedent in published case law where Belgian courts have ruled on “anti-arbitration injunc - tions”, which restrain parties from initiating or continu - ing arbitration proceedings. They are generally con - sidered impermissible as they contravene the arbitral tribunal’s authority to determine its own jurisdiction – in particular, in the context of non-domestic arbitra - tions where international treaties prohibit such judicial interference. Court Intervention Once an Arbitral Award Has Been Issued Belgian courts may assess an arbitral tribunal’s juris - diction primarily in set-aside or enforcement proceed - ings, where a party challenges the award (Article 1717, Section 3 BJC) or opposes enforcement (Article 1721, Section 1 BJC). However, Belgian courts generally adopt a restrained approach, respecting the arbitral tribunal’s primary role in determining its own jurisdic - tion and the autonomy of arbitration. 5.3 Timing of Challenge In principle, a party cannot directly challenge the juris - diction of the arbitral tribunal before a Belgian court before the award on the merits is rendered. If the arbitration is seated in Belgium, Article 1690, Section 4 BJC provides that the arbitral tribunal’s decision that it has jurisdiction may only be contest - ed together with the award on the merits in set-aside proceedings. A party may also seize Belgian courts to challenge the jurisdiction of the arbitral tribunal after the arbitration, in set-aside or enforcement proceedings (Article 1717, Section 3 and Article 1721, Section 1 BJC). An award may only be set aside on this basis if the party was not aware of the jurisdictional issue or raised it during the arbitration proceedings (Article 1717, Section 5 BJC). 5.4 Standard of Judicial Review for Jurisdiction/Admissibility Belgian law does not provide for a de novo review of an arbitral tribunal’s decision on its jurisdiction. Therefore, Belgian courts generally apply a deferen -
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