BELGIUM Law and Practice Contributed by: Nathalie Colin, Maria-Clara Van den Bossche, Kevin Xhebexhia and Florence Frühling, Freshfields
Emergency Arbitrators The BJC does not provide a specific mechanism for emergency arbitration; however, the main arbitral insti - tutions commonly used in Belgium do offer such pro - cedures. Indeed, Article 31 ICC Rules and Article 27 CEPANI Rules allow for the appointment of an emer - gency arbitrator to decide on interim and conserva - tory measures prior to the constitution of the arbitral tribunal. Decisions rendered by emergency arbitrators are binding on the parties. Of course, they do not bind the arbitral tribunal itself, which retains the authority to modify, set aside or terminate the emergency arbitra - tor’s decision. 6.3 Security for Costs Although Book VI of the BJC does not explicitly address security for costs, it is widely accepted that arbitral tribunals have the authority to order such security for costs as an interim measure. Book VI of the BJC contains dedicated rules govern - ing arbitral procedure. Under these rules, parties to an arbitration seated in Belgium are free to agree on the rules governing the procedure. In the absence of such agreement, the arbitral tribunal has broad discretion to determine how the proceedings will be conducted, which includes taking evidence and managing the process according to the needs of the dispute. This procedural flexibility is limited by due process requirements (such as equality and the right to be heard (Article 1699 BJC)) and a number of manda - tory provisions that cannot be derogated from (for example, the power of Belgian courts to issue interim measures (Article 1683 BJC) and the rules on recogni - tion and enforcement of arbitral awards (Articles 1719 to 1722 BJC)). 7.2 Procedural Steps Arbitral procedure in Belgium is highly flexible and guided by the principle of party autonomy. As long as fundamental procedural guarantees (such as due process and equal treatment) are respected, parties 7. Procedure 7.1 Governing Rules
tribunals cannot order conservatory attachments or issue ex parte interim or conservatory orders. Exam - ples of measures that the arbitral tribunal can order include: • investigative measures relating to the preservation of evidence; • advance payments on future judgments when the claim is undisputed; or • appointment of a sequestrator for disputed shares. 6.2 Role of Courts Role of Belgian Courts in Preliminary or Interim Relief in Arbitration Proceedings Belgian courts play two key roles with respect to pre - liminary or interim relief in arbitration proceedings. The first concerns the situation where a party fails to comply voluntarily with such measures. In such a case, unless the arbitral tribunal has decided other - wise, the relief shall be enforced by the Court of First Instance, regardless of the country in which the meas - ure was issued (Article 1696, Section 1 BJC). Second, Belgian courts may themselves grant interim or conservatory measures before or during arbitra - tion proceedings even if the seat of the arbitration is outside Belgium (Article 1683 and 1698 BJC). These measures may include preserving the status quo, pro - tecting evidence or granting provisional relief, provid - ed they remain provisional and do not prejudge the merits of the dispute. Whether a party can freely choose between the State courts and the arbitral tribunal to seek interim or con - servatory measures has been debated in Belgium. Some commentators support this freedom of choice, while others argue that parties should first turn to the arbitral tribunal and resort to State courts only if the tribunal is unable to satisfactorily address the issue. The Brussels Court of Appeal addressed this issue in a decision dated 17 January 2020, affirming the parties’ freedom to choose. However, the debate can hardly be considered definitively settled until the Bel - gian Court of Cassation rules on this question.
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