BELGIUM Law and Practice Contributed by: Nathalie Colin and Florence Frühling, Freshfields LLP
Third-Party Effect of Arbitral Awards The “virtual representation” theory, according to which certain third parties (such as the joint debtor or guar - antor) are presumed to be represented in the arbitral procedure has not yet been tested before the Belgian courts (but is rejected by Belgian authors). Such the - ory may be defended where the third party controlled the underlying arbitration and had the opportunity to litigate, in order to satisfy any due process concerns. Without the theory of virtual representation, res judi - cata does not extend to third parties to the procedure. However, arbitral awards do have evidentiary value and, therefore, can be invoked as a rebuttable pre - sumption of truth against a third party in subsequent legal proceedings. This means that the third party cannot challenge what has been decided by the arbi - tral award without providing new elements of proof or new arguments not submitted to the first arbitral tribunal. If the third party wants to completely review the debate, they must file a third-party opposition against the arbitral award. Such right was recognised by the Belgian Constitutional Court in a ruling dated 16 February 2017.
generally accepted as long as these basic principles are respected. 13.4 Consolidation Book VI of the BJC does not address consolida - tion of arbitration proceedings. However, under the CEPANI Rules (Article 13), separate arbitration pro - ceedings may be consolidated, though only by the CEPANI Appointments Committee or President (not by the arbitral tribunal itself). Consolidation may be requested by one or more parties, or by a tribunal, and must be made before any other plea is submit - ted. It is permitted where the proceedings are related or indivisible and certain criteria are met, including: • compatibility of arbitration agreements; • identity or connection between parties and dis - putes; Consolidation is generally excluded if a preliminary or merits decision has already been rendered in one of the proceedings, unless all parties consent. 13.5 Binding of Third Parties Third-Party Effect in General Third parties – whether foreign or domestic – can only be bound by an arbitration agreement or award if they have genuinely consented to the arbitration agreement, either expressly or, in some cases, tacitly based on the specific circumstances. Their participa - tion in arbitral proceedings additionally requires the unanimous approval of the arbitral tribunal. Belgian courts lack the power to bind third parties, including foreign entities, to an arbitration agreement or award unless such genuine consent exists. • the procedure of each arbitration; and • agreement on the place of arbitration.
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