BELGIUM Law and Practice Contributed by: Nathalie Colin and Florence Frühling, Freshfields LLP
10. The Award 10.1 Legal Requirements Legal Requirements for an Arbitral Award
11. Review of an Award 11.1 Grounds for Appeal Appeal of the Award
Under Belgian law, arbitral awards must be in writing and signed by the arbitrators. They must be reasoned – absence of reasoning may lead to the award being set aside or denied enforcement. Awards must also include the identities and domiciles of the parties and arbitrators, a summary of the facts and legal issues, the date and the place of arbitration (Article 1713 BJC). However, omission of these formal elements does not affect the validity of the award. Time Limit The parties are free to set a time limit within which the arbitral tribunal must render its award. If no time limit is agreed upon, and if six months have elapsed since the appointment of the last arbitrator, the Presi - dent of the Court of First Instance may, at a party’s request, impose a time limit on the arbitral tribunal An arbitral tribunal in Belgium may only grant reme - dies that are permitted under the law applicable to the dispute. If Belgian law applies, the arbitral tribunal can award compensatory and liquidated damages, but it is not permitted to grant punitive damages. 10.3 Recovering Interest and Legal Costs (Article 1713, Section 2 BJC). 10.2 Types of Remedies The parties may agree in advance on how arbitration costs and fees will be allocated, or they may choose to follow the rules of the chosen arbitral institution (eg, Article 38 ICC Rules or Article 39 CEPANI Rules). In the absence of any specific agreement or rule, the arbitral tribunal has full discretion to decide on the allocation of all costs, including legal fees, in its award (Article 1713, Section 6 BJC). Following a decision of the Belgian Court of Cassation dated 2 September 2004, the prevailing party in an arbitration seated in Belgium can recover its legal and expert fees from the losing party. Unlike proceedings before State courts, this reimbursement is not subject to a statutory cap and may cover the actual fees and costs incurred.
Under Article 1716 BJC, arbitral awards are final and not subject to appeal unless the parties have express - ly agreed otherwise in the arbitration agreement. In such rare cases, the appeal must be brought before a new arbitral tribunal, and must be filed within one month of notification of the award. Belgian law does not provide specific grounds for appeal. Setting-Aside of the Award According to Article 1717 BJC, arbitral awards that are not open to appeal may still be set aside by Belgian courts, but only on the basis of a limited and exhaus - tive list of grounds. These include serious procedural irregularities or violations of public policy. If an award is set aside, it is deemed void under Belgian law. The parties may initiate new arbitration proceedings, unless the setting-aside was based on the invalidity of the arbitration agreement itself. Decisions on setting aside are final and cannot be appealed, although a limited recourse is possible before the Belgian Court of Cassation within three months of the notification of the final decision. This recourse is strictly limited to a review of the correct application of the law and does not entail a re-examination of the facts. 11.2 Excluding/Expanding the Scope of Appeal Scope of Appeal Article 1716 BJC allows parties to include an appeal mechanism in their arbitration agreement on terms of their choosing. If parties opt for such an appeal, they are also free to determine its grounds and procedural rules. Scope of Setting-Aside The grounds for setting aside an arbitral award under Article 1717, Section 3 BJC are exhaustive and cannot be expanded by party agreement. However, Article 1718 BJC allows the parties to expressly waive their right to seek the setting-aside of an arbitral award, provided that none of them is a Belgian national, resi - dent or entity with a registered office, principal place of business, or branch in Belgium. Such waiver must be explicit and included either in the arbitration agree -
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