BELGIUM Law and Practice Contributed by: Nathalie Colin, Maria-Clara Van den Bossche, Kevin Xhebexhia and Florence Frühling, Freshfields
8. Evidence 8.1 Collection and Submission of Evidence The collection and submission of evidence in Belgian arbitration is broadly governed by the principle of par - ty autonomy. There is no general discovery or man - datory disclosure as found in common law systems. Evidence is typically submitted during the pleadings phase, with each party filing its brief accompanied by all relevant documentary evidence, witness state - ments and expert reports, where applicable. At the hearing, written witness statements prepared in accordance with international standards (mainly the IBA Rules on the Taking of Evidence in International Arbitration) are commonly used. Witnesses may then be subject to direct and cross-examination. Docu - mentary evidence submitted in advance may also be discussed during the hearing. The arbitral tribunal has broad discretion to assess the admissibility and probative value of evidence (Article 1700, Section 3 BJC), subject to party agreement, due process and public policy. 8.2 Rules of Evidence The rules of evidence applying in Belgian-seated arbitration proceedings differ from those governing domestic litigation before Belgian courts. Arbitral tri - bunals are not bound by statutory evidentiary rules and may freely determine the admissibility and pro - bative value of evidence, unless otherwise agreed by the parties. The principle of freedom of proof prevails, allowing the arbitral tribunal to admit any type of evi - dence it deems relevant and credible. In practice, arbitrators – including in Belgian-seated arbitrations – frequently refer to the IBA Rules on the Taking of Evidence in International Arbitration, which Arbitral tribunals seated in Belgium are empowered to order parties to produce documents or other evi - dence, and can impose a penalty for non-compliance (Article 1700, Section 4 and Article 1713, Section 7 BJC). However, they cannot directly compel non-par - ties to co-operate. If a non-party refuses to produce evidence or attend as a witness, the arbitral tribunal codify international best practice. 8.3 Powers of Compulsion
are free to agree on all aspects of the procedure – including: • its commencement; • methods of communication; • language of arbitration; • submission of arguments; and • conduct of hearings. In the absence of specific agreement, these proce - dural aspects are determined by the arbitral tribunal, subject to the mandatory provisions of the BJC (Arti - cle 1700, Section 2 BJC). 7.3 Powers and Duties of Arbitrators The BJC imposes several obligations on arbitrators, including the duty to: • carry out their mandate once accepted (Article 1685, Section 7 BJC); • maintain impartiality and independence throughout the arbitration proceedings; • continuously disclose any circumstances that may give rise to reasonable doubts about their impar - tiality or independence (Article 1686, Section 1 BJC); and • uphold due process and ensure fair and equal treatment of all parties (Article 1699 BJC). Arbitrators are vested with a range of powers to effec - tively manage the arbitration proceedings, such as the authority to: • order interim measures; • hear witnesses and experts; and In arbitration proceedings seated in Belgium, parties may be represented either by a lawyer or by another person of their choice, subject to the approval of the arbitral tribunal. A party’s lawyers are not required to be members of the Belgian Bar; it is sufficient that they are admitted to practice by a Bar or Law Society in another jurisdiction and can provide evidence of such membership. This flexibility applies equally to both domestic and international arbitration proceed - ings seated in Belgium. • impose penalty payments. 7.4 Legal Representatives
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