BELGIUM Law and Practice Contributed by: Nathalie Colin, Maria-Clara Van den Bossche, Kevin Xhebexhia and Florence Frühling, Freshfields
would constitute an unauthorised interference with the arbitral tribunal’s exclusive jurisdiction to rule on its own jurisdiction. Court Intervention Once an Arbitral Award Has Been Issued Belgian courts may assess an arbitral tribunal’s juris - diction primarily in set-aside or enforcement proceed - ings, where a party challenges the award (Article 1717, Section 3 BJC) or opposes enforcement (Article 1721, Section 1 BJC). However, Belgian courts generally adopt a restrained approach, respecting the arbitral tribunal’s primary role in determining its own jurisdic - tion and the autonomy of arbitration. 5.3 Timing of Challenge A party cannot directly challenge the jurisdiction of the arbitral tribunal before a Belgian court before the award on the merits is rendered. If the arbitration is seated in Belgium, Article 1690, Section 4 BJC provides that the arbitral tribunal’s decision that it has jurisdiction may only be contest - ed together with the award on the merits in set-aside proceedings. A party may also seize Belgian courts to challenge the jurisdiction of the arbitral tribunal after the arbitration, in set-aside or enforcement proceedings (Article 1717, Section 3 and Article 1721, Section 1 BJC). An award may only be set aside on this basis if the party was not aware of the jurisdictional issue or raised it during the arbitration proceedings (Article 1717, Section 5 BJC). 5.4 Standard of Judicial Review for Jurisdiction/Admissibility Belgian law contains no statutory provision requiring a de novo review of an arbitral tribunal’s decision on its jurisdiction. This question remains debated in Belgian doctrine and case law. While recent doctrine and case law have advocated for a full re-examination of juris - diction, others support a more limited review, allowing setting aside only where there are compelling grounds to disagree with the tribunal’s jurisdiction. 5.5 Breach of Arbitration Agreement When a dispute is subject to an arbitration agreement, Belgian courts must decline jurisdiction if the matter
is brought before them, unless the arbitration agree - ment is invalid or has expired (Article 1682, Section 1 BJC). This rule applies regardless of whether the seat of arbitration is in Belgium or abroad. The objection to the court’s jurisdiction must be raised at the very outset of the proceedings (in limine litis) – otherwise, the arbitration agreement is deemed waived. When deciding whether to decline jurisdiction, Bel - gian courts fully review the validity of the arbitration agreement. This possibility, granted by Article 1682 BJC, contrasts with French law for example, where courts must decline jurisdiction unless the arbitration agreement is “manifestly” invalid (Article 1448 of the French Code of Civil Procedure). 5.6 Jurisdiction Over Third Parties As arbitration is rooted in party consent, a third party – whether foreign or domestic – cannot be brought into the proceedings or force its way into them with - out the agreement of all parties involved. Participation requires not only a valid arbitration agreement with the parties but also the unanimous approval of the arbitral tribunal (Article 1709 BJC). The mere fact that a party has participated in the performance of a contract con - taining an arbitration clause, or is involved in a group of contracts where one includes such a clause, is not in itself sufficient to bind that party to arbitration. What truly matters is whether, in light of the specific facts of the case, it can be reasonably concluded that the third party genuinely consented to the arbitration agree - ment, even if only tacitly. Arbitral tribunals seated in Belgium are empowered to grant any interim or conservatory measures they deem necessary, unless the parties have agreed oth - erwise (Article 1691 BJC). Such relief is binding. When enforcement is sought in Belgium, regardless of the seat of arbitration, Article 1696, Section 1 BJC pro - vides a specific enforcement mechanism. The scope of interim or conservatory measures availa - ble to arbitral tribunals in Belgium is broadly equivalent to that of Belgian courts, with two exceptions: arbitral 6. Preliminary and Interim Relief 6.1 Types of Relief
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