BELGIUM Law and Practice Contributed by: Nathalie Colin, Maria-Clara Van den Bossche, Kevin Xhebexhia and Florence Frühling, Freshfields
irregularities or violations of public policy. If an award is set aside, it is deemed void under Belgian law. The parties may initiate new arbitration proceedings, unless the setting-aside was based on the invalidity of the arbitration agreement itself. Decisions on setting aside are final and cannot be appealed, although a limited recourse is possible before the Belgian Court of Cassation within three months of the notification of the final decision. This recourse is strictly limited to a review of the correct application of the law and does not entail a re-examination of the facts. 11.2 Excluding/Expanding the Scope of Appeal Scope of Appeal Article 1716 BJC allows parties to include an appeal mechanism in their arbitration agreement on terms of their choosing. If parties opt for such an appeal, they are also free to determine its grounds and procedural rules. Scope of Setting-Aside The grounds for setting aside an arbitral award under Article 1717, Section 3 BJC are exhaustive and cannot be expanded by party agreement. However, Article 1718 BJC allows the parties to expressly waive their right to seek the setting-aside of an arbitral award, provided that none of them is a Belgian national, resi - dent or entity with a registered office, principal place of business, or branch in Belgium. Such waiver must be explicit and included either in the arbitration agree - ment or in a subsequent agreement. A mere reference to institutional arbitral rules that contain a waiver may In the Belgian legal system, there is no provision for a full or de novo review of an arbitral award. Judg - es in setting-aside proceedings are not permitted to reassess the merits of the case, as the process is strictly limited to determining whether the award complies with the legal requirements for validity and is not intended to serve as an appeal. In principle, this also applies to arbitral tribunals’ decisions on their jurisdiction, although recent doctrine and case law reflect ongoing debate as to whether such jurisdic - tional issues warrant a more thorough judicial review. As regards public policy grounds, the Belgian Court not suffice to meet this requirement. 11.3 Standard of Judicial Review
of Cassation clarified in a ruling dated 12 April 2024 that the judge cannot reassess the dispute in light of public policy provisions applied by the arbitrator, but must determine whether the award itself contradicts public policy.
12. Enforcement of an Award 12.1 New York Convention
Belgium is a party to the 1958 New York Conven - tion on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”), which it applies on the basis of reciprocity (ie, Belgium grants other States the same treatment they afford Belgium under the New York Convention). In addition, Belgium has signed several bilateral investment treaties (BITs) as well as the 1961 European Convention on Interna - tional Commercial Arbitration and the 1965 Interna - tional Centre for Settlement of Investment Disputes (ICSID) Convention. According to Article 1721 Section 3 BJC, these instru - ments take precedence over Book VI of the BJC, unless the treaty provides otherwise. For instance, the New York Convention’s “more favourable right” clause permits the application of national rules that are more favourable to recognition and enforcement than those provided under the Convention itself (Article VII(1)). 12.2 Enforcement Procedure Procedures and Standards for Enforcing an Award A party may seek enforcement of a domestic or for - eign arbitral award once it is no longer subject to chal - lenge or has been declared provisionally enforceable. The Court of First Instance has jurisdiction to hear applications for recognition and enforcement of arbi - tral awards. These applications are made ex parte – meaning that the opposing party is not heard initially but may appeal the exequatur order. Belgian courts may refuse enforcement of an arbitral award only on a limited number of grounds, which are generally in line with Article V of the New York Conven - tion. Such grounds also largely mirror those provided under Article 1717 BJC (eg, invalidity of the arbitra - tion agreement, irregularity of the composition of the arbitral tribunal, non-arbitrability of the dispute). One
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