BELGIUM Law and Practice Contributed by: Nathalie Colin and Florence Frühling, Freshfields LLP
Whether a party can freely choose between the State courts and the arbitral tribunal to seek interim or con - servatory measures has been debated in Belgium. Some commentators support this freedom of choice, while others argue that parties should first turn to the arbitral tribunal and resort to State courts only if the tribunal is unable to satisfactorily address the issue. The Brussels Court of Appeal addressed this issue in a decision dated 17 January 2020, affirming the parties’ freedom to choose. However, the debate can hardly be considered definitively settled until the Bel - gian Court of Cassation rules on this question. Emergency Arbitrators The BJC does not provide a specific mechanism for emergency arbitration; however, the main arbitral insti - tutions commonly used in Belgium do offer such pro - cedures. Indeed, Article 29 ICC Rules and Article 27 CEPANI Rules allow for the appointment of an emer - gency arbitrator to decide on interim and conserva - tory measures prior to the constitution of the arbitral tribunal. Decisions rendered by emergency arbitrators are binding on the parties. Of course, they do not bind the arbitral tribunal itself, which retains the authority to modify, set aside or terminate the emergency arbitra - tor’s decision. 6.3 Security for Costs Although Book VI of the BJC does not explicitly address security for costs, it is widely accepted that arbitral tribunals have the authority to order such security for costs as an interim measure. Book VI of the BJC contains dedicated rules govern - ing arbitral procedure. Under these rules, parties to an arbitration seated in Belgium are free to agree on the rules governing the procedure. In the absence of such agreement, the arbitral tribunal has broad discretion to determine how the proceedings will be conducted, which includes taking evidence and managing the process according to the needs of the dispute. This procedural flexibility is limited by due process requirements (such as equality and the right to be 7. Procedure 7.1 Governing Rules
heard (Article 1699 BJC)) and a number of manda - tory provisions that cannot be derogated from (for example, the power of Belgian courts to issue interim measures (Article 1683 BJC) and the rules on recogni - tion and enforcement of arbitral awards (Articles 1719 to 1722 BJC)). 7.2 Procedural Steps Arbitral procedure in Belgium is highly flexible and guided by the principle of party autonomy. As long as fundamental procedural guarantees (such as due process and equal treatment) are respected, parties are free to agree on all aspects of the procedure – including: • its commencement; • methods of communication; • language of arbitration; • submission of arguments; and • conduct of hearings. In the absence of specific agreement, these proce - dural aspects are determined by the arbitral tribunal, subject to the mandatory provisions of the BJC (Arti - cle 1700, Section 2 BJC). 7.3 Powers and Duties of Arbitrators The BJC imposes several obligations on arbitrators, including the duty to: • carry out their mandate once accepted (Article 1685, Section 7 BJC); • maintain impartiality and independence throughout the arbitration proceedings; • continuously disclose any circumstances that may give rise to reasonable doubts about their impar - tiality or independence (Article 1686, Section 1 BJC); and • uphold due process and ensure fair and equal treatment of all parties (Article 1699 BJC). Arbitrators are vested with a range of powers to effec - tively manage the arbitration proceedings, such as the authority to: • order interim measures; • hear witnesses and experts; and • impose penalty payments.
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