BELGIUM Law and Practice Contributed by: Nathalie Colin and Florence Frühling, Freshfields LLP
7.4 Legal Representatives In arbitration proceedings seated in Belgium, parties may be represented either by a lawyer or by another person of their choice, subject to the approval of the arbitral tribunal. A party’s lawyers are not required to be members of the Belgian Bar; it is sufficient that they are admitted to practice by a Bar or Law Society in another jurisdiction and can provide evidence of such membership. This flexibility applies equally to both domestic and international arbitration proceed - ings seated in Belgium. 8. Evidence 8.1 Collection and Submission of Evidence The collection and submission of evidence in Belgian arbitration is broadly governed by the principle of par - ty autonomy. There is no general discovery or man - datory disclosure as found in common law systems. Evidence is typically submitted during the pleadings phase, with each party filing its brief accompanied by all relevant documentary evidence, witness state - ments and expert reports, where applicable. At the hearing, written witness statements prepared in accordance with international standards (mainly the IBA Rules on the Taking of Evidence in International Arbitration) are commonly used. Witnesses may then be subject to direct and cross-examination. Docu - mentary evidence submitted in advance may also be discussed during the hearing. The arbitral tribunal has broad discretion to assess the admissibility and probative value of evidence (Article 1700, Section 3 BJC), subject to party agreement, due process and public policy. 8.2 Rules of Evidence The rules of evidence applying in Belgian-seated arbitration proceedings differ from those governing domestic litigation before Belgian courts. Arbitral tri - bunals are not bound by statutory evidentiary rules and may freely determine the admissibility and pro - bative value of evidence, unless otherwise agreed by the parties. The principle of freedom of proof prevails, allowing the arbitral tribunal to admit any type of evi - dence it deems relevant and credible.
In practice, arbitrators – including in Belgian-seated arbitrations – frequently refer to the IBA Rules on the Taking of Evidence in International Arbitration, which
codify international best practice. 8.3 Powers of Compulsion
Arbitral tribunals seated in Belgium are empowered to order parties to produce documents or other evi - dence, and can impose a penalty for non-compliance (Article 1700, Section 4 and Article 1713, Section 7 BJC). However, they cannot directly compel non-par - ties to co-operate. If a non-party refuses to produce evidence or attend as a witness, the arbitral tribunal may invite a party to seek assistance from the Presi - dent of the Court of First Instance, who may order such measures as are necessary (including compul - sion) in summary proceedings (Article 1708 BJC). Belgian law does not establish a general duty of con - fidentiality for arbitration proceedings, submissions or awards. While arbitrators are expected to maintain confidentiality, this obligation is not imposed by law but may arise from the parties’ agreement or insti - tutional rules. For instance, under Article 26 of the CEPANI Rules, arbitration proceedings are confiden - tial unless the parties agree otherwise or there is a legal obligation to disclose. CEPANI’s Rules of Good Conduct (Schedule II of the CEPANI Rules) further restrict the publication of awards, permitting only anonymous publication with the explicit consent of the parties and prior notification to CEPANI. 9. Confidentiality 9.1 Extent of Confidentiality The principle of confidentiality in arbitration should not prevent a party from enforcing or challenging an arbi - tral award before the courts. Article 26 CEPANI Rules explicitly confirms this by allowing parties to disclose any information required for such proceedings.
54 CHAMBERS.COM
Powered by FlippingBook