BELGIUM Law and Practice Contributed by: Nathalie Colin and Florence Frühling, Freshfields LLP
12.2 Enforcement Procedure Procedures and Standards for Enforcing an Award A party may seek enforcement of a domestic or for - eign arbitral award once it is no longer subject to chal - lenge or has been declared provisionally enforceable. The Court of First Instance has jurisdiction to hear applications for recognition and enforcement of arbi - tral awards. These applications are made ex parte – meaning that the opposing party is not heard initially but may appeal the exequatur order. Belgian courts may refuse enforcement of an arbitral award only on a limited number of grounds, which are generally in line with Article V of the New York Conven - tion. Such grounds also largely mirror those provided under Article 1717 BJC (eg, invalidity of the arbitra - tion agreement, irregularity of the composition of the arbitral tribunal, non-arbitrability of the dispute). One additional ground for refusal is that the arbitral award is not yet binding or has been set aside or suspended in the country where the award was issued (Article 1721, Section 1 BJC). Enforcement of an Award That is Being or Has Been Set Aside Belgian law now explicitly provides that any prior enforcement order lapses if the award is subsequently set aside, whether the award is domestic or foreign (Article 1720, Section 7 BJC). That said, the initiation of set-aside proceedings does not automatically sus - pend the recognition or enforcement of the arbitral award. Upon a party’s request, Belgian courts may grant a suspension of the enforceability of the award pending the outcome of the set-aside proceedings (Article 1717, Section 8 BJC). The Defence of Sovereign Immunity Immunity from jurisdiction Belgian courts apply customary international law when determining state immunity, guided by the European Convention on State Immunity (ECSI) and the United Nations Convention on Jurisdictional Immunities of States and Their Property (UNCSI). Although the latter is not yet in force, it strongly influences Belgian prac - tice. Under Article 17 UNCSI (and similarly Article 12 ECSI), when a State has entered into a written agree - ment to arbitrate commercial disputes with a foreign individual or entity, it generally cannot invoke immunity
ment or in a subsequent agreement. A mere reference to institutional arbitral rules that contain a waiver may
not suffice to meet this requirement. 11.3 Standard of Judicial Review
In the Belgian legal system, there is no provision for a full or de novo review of an arbitral award. Judg - es in setting-aside proceedings are not permitted to reassess the merits of the case, as the process is strictly limited to determining whether the award complies with the legal requirements for validity and is not intended to serve as an appeal. In principle, this also applies to arbitral tribunals’ decisions on their jurisdiction, although recent doctrine and case law reflect ongoing debate as to whether such jurisdic - tional issues warrant a more thorough judicial review. As regards public policy grounds, the Belgian Court of Cassation clarified in a ruling dated 12 April 2024 that the judge cannot reassess the dispute in light of public policy provisions applied by the arbitrator, but must determine whether the award itself contradicts public policy. Belgium is a party to the 1958 New York Conven - tion on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”), which it applies on the basis of reciprocity (ie, Belgium grants other States the same treatment they afford Belgium under the New York Convention). In addition, Belgium has signed several BITs as well as the 1961 European Convention on International Commercial Arbitration and the 1965 International Centre for Settlement of Investment Disputes (ICSID) Convention. 12. Enforcement of an Award 12.1 New York Convention According to Article 1721 Section 3 BJC, these instru - ments take precedence over Book VI of the BJC, unless the treaty provides otherwise. For instance, the New York Convention’s “more favourable right” clause permits the application of national rules that are more favourable to recognition and enforcement than those provided under the Convention itself (Article VII (1)).
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