BELGIUM Trends and Developments Contributed by: Nathalie Colin and Florence Frühling, Freshfields LLP
may arise, for example, when an arbitration clause fails to explicitly exclude the possibility of initiating court proceedings during the arbitration process, or when it lacks a defined procedure to ensure the arbi - tration’s effectiveness. These shortcomings can cre - ate uncertainty and risk, rendering the clause unen - forceable. There is no published case law on the validity of asym - metric hybrid clauses. In the absence of a definitive ruling from the Belgian Court of Cassation, the legal status of asymmetric hybrid clauses in the context of arbitration remains unresolved. Impact of ECJ Decision C-537/23 ECJ Decision C-537/23 derives from a dispute between an Italian company (SIL) and a French com - pany (Agora), centred on an asymmetric clause that designated Italy as the forum but granted SIL the option to bring proceedings before other courts as well. The key legal issue was the validity of such asym - metric clauses under Article 25, Section 1 of the Brus - sels I bis Regulation (No 1215/2012), which regulates jurisdiction agreements. In its ruling, the ECJ provided strong reassurance for companies by confirming that asymmetric jurisdiction clauses are, in principle, com - patible with EU law, as long as they: • designate the courts of one or more EU member states (or states party to the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters between EU states, Switzerland, Norway and Iceland); • identify objective criteria that are sufficiently pre - cise to determine jurisdiction; and • do not contravene mandatory EU provisions (par - ticularly those protecting insurance, consumer or employment contracts, or rules establishing exclu - sive jurisdiction). Key takeaways Asymmetric hybrid clauses carry the risk of being declared invalid or unenforceable in some countries (including Belgium), especially if they are dispropor - tionate or lack clarity – leading to legal uncertainty and undermining predictability in cross-border contracts. These clauses can also give rise to parallel proceed -
ings or jurisdictional conflicts, increasing costs and prolonging disputes. While ECJ Decision C-537/23 does not apply to clauses granting one party a right to bring arbitration proceedings, it may nonetheless influence how Bel - gian courts assess the validity of asymmetric clauses in the context of arbitration. Courts may indeed take guidance from the criteria developed by the ECJ. That said, companies should exercise caution when draft - ing an asymmetric hybrid clause governed by Belgian law given the current legal uncertainty. To mitigate potential risks, they should draft such clause with particular attention to clarity and to ensuring a fair Anti-arbitration injunctions are court orders that restrain parties from initiating or continuing arbitra - tion proceedings. Such injunctions have become particularly conten - tious in the context of intra-EU investment arbitra - tions. Over the past decade, the EU has increasingly opposed such proceedings, arguing that they are incompatible with the EU legal order. This position has been reinforced through a series of legal and policy developments, including: • multiple judgments of the ECJ; • the 2020 agreement among member states to ter - minate intra-EU bilateral investment treaties (BITs); and • the EU’s co-ordinated withdrawal from the Energy Charter Treaty (ECT). balance between the parties. Anti-Arbitration Injunctions Global legal framework In this context, some member states have turned to domestic courts to attempt to block intra-EU arbitra - tions in which they are involved. Most recently, in April 2025, the Amsterdam Court of Appeal ordered Dutch investor LC Corp BV to terminate ongoing arbitration proceedings against Poland, imposing a potential penalty of up to EUR10 million. The Court found that LC Corp had acted unlawfully by pursuing arbitration despite knowing that the relevant clause had been deemed invalid under EU law.
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