BELGIUM Law and Practice Contributed by: Nathalie Colin and Florence Frühling, Freshfields LLP
from jurisdiction in proceedings related to the validity, interpretation or enforcement of the arbitration agree - ment or award – unless the arbitration agreement pro - vides otherwise. Immunity from execution Under Article 1412quinquies, Section 1 BJC, assets belonging to a foreign State located in Belgium are, in principle, immune from execution. Article 1412quin - quies, Section 2, 3° BJC provides for an exception to the prohibition of attachment of assets belonging to a foreign power that are located in Belgium. Under this provision, a creditor, in possession of an enforcement title, may request the attachment judge to attach the assets of a foreign power that are located in Belgium, provided the creditor demonstrates that: • such assets are specifically used or intended to be used by the foreign power for other than non-com - mercial public service purposes; • such assets are located in Belgium; and • the attachment only relates to assets which have a link with the entity that is subject to the enforce - ment title. As a result of a recent decision of the Belgian Court of Cassation dated 19 December 2024, the debtor State’s lack of co-operation or inability to provide evi - dence as to the nature of the attached assets could significantly hinder its ability to successfully claim immunity from execution. It will be up to the attach - ment judge to decide – based on their appreciation of the facts – whether or not the absence of collaboration of evidence on the part of the debtor State, or the way it defends itself, entails that the assets are (partially) attachable or not. 12.3 Approach of the Courts General Approach Belgian courts generally adopt a pro-enforcement stance towards arbitral awards, whether domestic or foreign. In principle, Belgian courts are not permitted to reas - sess the merits of the case and may only refuse enforcement if the arbitral award contravenes Article 1721 BJC. Nonetheless, a limited review of the merits may occur to verify the arbitral tribunal’s jurisdiction
or assess a potential breach of public policy (although the extent of such judicial review remains debated under Belgian law). Refusal to Enforce Based on Public Policy Grounds Refusal to enforce an award on public policy grounds is rare, as the concept of “public policy” is interpreted restrictively. In the context of foreign awards, enforcement may be refused if the award violates Belgian international public policy – a concept that is narrower than domes - tic public policy. International public policy refers to fundamental principles essential to Belgium’s moral, political or economic order. A violation of public policy may arise either from the substantive content of the award or from serious pro - cedural irregularities, such as the absence of reason - ing in the award. 13. Miscellaneous 13.1 Class Action or Group Arbitration The Belgian class action regime does not deal with class arbitration. Any “class arbitration” would there - fore need to comply with the usual procedural rules for arbitration. 13.2 Ethical Codes While there is no universally binding code of ethics for arbitrators in Belgium, legal doctrine recognises key ethical duties, such as availability, diligence, con - fidentiality and the obligation to strive to render an enforceable award. Arbitral institutions may impose additional ethical obligations through their own codes of conduct (eg, CEPANI’s Rules of Good Conduct). 13.3 Third-Party Funding Third-party funding agreements are considered sui generis contracts under Belgian law, meaning they are not expressly regulated. The validity of third-party funding in Belgium is mainly assessed through the lens of respect for due process and public policy, both during arbitration and by courts at the set-aside or enforcement stage. Overall, third-party funding is
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