BELGIUM Trends and Developments Contributed by: Nathalie Colin and Florence Frühling, Freshfields LLP
Notion A hybrid clause allows parties to choose between several fora (arbitration and/or specified State courts). Such clauses are asymmetric/unilateral if the choice is only offered to one of the parties (often the dominant commercial partner). Asymmetric hybrid clauses are included in contracts for three main reasons: • pragmatic dispute resolution – companies may prefer to avoid the time and cost associated with arbitration proceedings for minor disputes, opting instead for the efficiency of local courts in such cases; • outcome of commercial negotiations – asymmet - ric hybrid clauses can reflect the result of detailed contractual negotiations, where one party grants the other greater procedural flexibility as part of a broader package of concessions, balancing com - mercial leverage and practical needs; and • addressing imbalances in bargaining power – where parties occupy unequal positions, asym - metric hybrid clauses may serve a compensatory function, helping to restore a degree of balance in the overall contractual relationship. Belgian legal framework and limited case law There is no definitive consensus in the Belgian legal doctrine on the validity of asymmetric hybrid clauses involving arbitration. It is generally recognised that parties may agree in advance to a certain procedur - al imbalance through the use of asymmetric hybrid clauses, as long as the principle of fairness during the proceedings is preserved. Still, it remains question - able whether such a clause qualifies as an arbitration agreement under Article 1681 of the Belgian Judicial Code (BJC), as it does not impose a binding obliga - tion on the parties to refer disputes to arbitration but merely grants one party the option to do so, without a clear reciprocal commitment. Even assuming that such clauses qualify as arbitration agreements in principle, they may be deemed invalid if they impose disproportionate procedural burdens or if recourse to arbitration would be manifestly prejudicial to one party. In addition, the enforceability of asym - metric hybrid clauses can be undermined by ambigu - ity or a lack of clarity in their operation – commonly referred to as “pathological” clauses. Such defects
Introduction International arbitration continues to evolve against a backdrop of changing legal, political and technologi - cal landscapes. As businesses become increasingly global, parties encounter new challenges and oppor - tunities when drafting dispute resolution clauses, fac - ing cross-border enforcement, or deploying emerging technologies in proceedings. In Belgium, recent devel - opments highlight both the complexity and dynamism of the arbitration environment. This article examines three current and significant trends for parties invest - ing in or contracting with Belgian counterparties or operating within the broader EU framework: • the status and risks of asymmetric hybrid juris - diction clauses following new guidance from the European Court of Justice (ECJ); • the rise, legal intricacies and current lack of Belgian case law on anti-arbitration injunctions, particularly in the context of intra-EU disputes; and • the rapid integration of artificial intelligence (AI) tools in international arbitration, with a focus on the legal, ethical and practical implications under Belgian and EU law. For clients active in cross-border relationships, under - standing these topics is essential to making informed decisions, managing risk and seizing opportunities in On 27 February 2025, the ECJ issued a landmark decision in Case C-537/23, Società Italiana Lastre , providing clarity on the validity of so-called “asym - metric” hybrid jurisdiction clauses. This decision is particularly relevant for international businesses operating in Belgium and across the EU, as it outlines the conditions under which one party may retain the flexibility to choose between different dispute resolu - tion fora, while the other party is restricted to a single option. It is also relevant to international arbitration as it raises broader questions about the enforceability of hybrid clauses that combine ordinary courts and arbitration, particularly where such clauses grant one party greater procedural flexibility. today’s arbitration market. Asymmetric Hybrid Clauses
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