BELGIUM Law and Practice Contributed by: Nathalie Colin and Florence Frühling, Freshfields LLP
6. Preliminary and Interim Relief 6.1 Types of Relief
tial approach, focusing on whether the award meets legal requirements rather than reassessing the arbitral tribunal’s jurisdiction. However, the nature and scope of this judicial review remains debated in Belgian doc - trine and case law. While recent doctrine and case law have advocated for a full re-examination of jurisdic - tion, others support a more limited review, allowing setting aside only where there are compelling grounds to disagree with the tribunal’s jurisdiction. 5.5 Breach of Arbitration Agreement When a dispute is subject to an arbitration agreement, Belgian courts must decline jurisdiction if the matter is brought before them, unless the arbitration agree - ment is invalid or has expired (Article 1682, Section 1 BJC). This rule applies regardless of whether the seat of arbitration is in Belgium or abroad. The objection to the court’s jurisdiction must be raised at the very outset of the proceedings (in limine litis) – otherwise, the arbitration agreement is deemed waived. When deciding whether to decline jurisdiction, Bel - gian courts fully review the validity of the arbitration agreement. This possibility, granted by Article 1682 BJC, contrasts with French law for example, where courts must decline jurisdiction unless the arbitration agreement is “manifestly” invalid (Article 1448 of the French Code of Civil Procedure). 5.6 Jurisdiction Over Third Parties As arbitration is rooted in party consent, a third party – whether foreign or domestic – cannot be brought into the proceedings or force its way into them with - out the agreement of all parties involved. Participation requires not only a valid arbitration agreement with the parties but also the unanimous approval of the arbitral tribunal (Article 1709 BJC). The mere fact that a party has participated in the performance of a contract con - taining an arbitration clause, or is involved in a group of contracts where one includes such a clause, is not in itself sufficient to bind that party to arbitration. What truly matters is whether, in light of the specific facts of the case, it can be reasonably concluded that the third party genuinely consented to the arbitration agree - ment, even if only tacitly.
Arbitral tribunals seated in Belgium are empowered to grant any interim or conservatory measures they deem necessary, unless the parties have agreed oth - erwise (Article 1691 BJC). Such relief is binding. When enforcement is sought in Belgium, regardless of the seat of arbitration, Article 1696, Section 1 BJC pro - vides a specific enforcement mechanism. The scope of interim or conservatory measures availa - ble to arbitral tribunals in Belgium is broadly equivalent to that of Belgian courts, with two exceptions: arbitral tribunals cannot order conservatory attachments or issue ex parte interim or conservatory orders. Exam - ples of measures that the arbitral tribunal can order include: • investigative measures relating to the preservation of evidence; • advance payments on future judgments when the claim is undisputed; or • appointment of a sequestrator for disputed shares. 6.2 Role of Courts Role of Belgian Courts in Preliminary or Interim Relief in Arbitration Proceedings Belgian courts play two key roles with respect to pre - liminary or interim relief in arbitration proceedings. The first concerns the situation where a party fails to comply voluntarily with such measures. In such a case, unless the arbitral tribunal has decided other - wise, the relief shall be enforced by the Court of First Instance, regardless of the country in which the meas - ure was issued (Article 1696, Section 1 BJC). Second, Belgian courts may themselves grant interim or conservatory measures before or during arbitra - tion proceedings even if the seat of the arbitration is outside Belgium (Article 1683 and 1698 BJC). These measures may include preserving the status quo, pro - tecting evidence or granting provisional relief, provid - ed they remain provisional and do not prejudge the merits of the dispute.
52 CHAMBERS.COM
Powered by FlippingBook