BELGIUM Law and Practice Contributed by: Nathalie Colin, Maria-Clara Van den Bossche, Kevin Xhebexhia and Florence Frühling, Freshfields
ted to reassess the merits of the case and may only refuse enforcement if the arbitral award contravenes Article 1721 BJC. Nonetheless, a limited review of the merits may occur to verify the arbitral tribunal’s juris - diction or assess a potential breach of public policy (although the extent of such judicial review remains debated under Belgian law). Refusal to Enforce Based on Public Policy Grounds Refusal to enforce an award on public policy grounds is rare, as the concept of “public policy” is interpreted restrictively. In the context of foreign awards, enforce - ment may be refused if the award violates Belgian international public policy – a concept that is narrower than domestic public policy. International public policy refers to fundamental principles essential to Belgium’s moral, political or economic order. A violation of public policy may arise either from the substantive content of the award or from serious procedural irregularities, such as the absence of reasoning in the award. 13. Miscellaneous 13.1 Class Action or Group Arbitration The Belgian class action regime does not deal with class arbitration. Any “class arbitration” would there - fore need to comply with the usual procedural rules for arbitration. 13.2 Ethical Codes While there is no universally binding code of ethics for arbitrators in Belgium, legal doctrine recognises key ethical duties, such as availability, diligence, con - fidentiality and the obligation to strive to render an enforceable award. Arbitral institutions may impose additional ethical obligations through their own codes of conduct (eg, CEPANI’s Rules of Good Conduct). 13.3 Third-Party Funding Third-party funding agreements are considered sui generis contracts under Belgian law, meaning they are not expressly regulated. The validity of third-party funding in Belgium is mainly assessed through the lens of respect for due process and public policy, both during arbitration and by courts at the set-aside or enforcement stage. Overall, third-party funding is
generally accepted as long as these basic principles are respected. 13.4 Consolidation Book VI of the BJC does not address consolidation of arbitration proceedings. However, under the CEPANI Rules (Article 13), separate arbitration proceedings may be consolidated, though only by the CEPANI Appointments Committee or President (not by the arbitral tribunal itself). Consolidation may be request - ed by one or more parties, before any other plea is submitted, or by a tribunal. It is permitted where the proceedings are related or indivisible and certain cri - teria are met, including: • compatibility of arbitration agreements; • identity or connection between parties and dis - putes; Consolidation is generally excluded if a preliminary or merits decision has already been rendered in one of the proceedings, unless all parties consent. 13.5 Binding of Third Parties Third-Party Effect in General Third parties – whether foreign or domestic – can only be bound by an arbitration agreement or award if they have genuinely consented to the arbitration agreement, either expressly or, in some cases, tacitly based on the specific circumstances. Their participa - tion in arbitral proceedings additionally requires the unanimous approval of the arbitral tribunal. Belgian courts lack the power to bind third parties, including foreign entities, to an arbitration agreement or award The “virtual representation” theory, according to which certain third parties (such as the joint debtor or guar - antor) are presumed to be represented in the arbitral procedure, has not yet been tested before the Belgian courts (but is rejected by Belgian authors). Such the - ory may be defended where the third party controlled the underlying arbitration and had the opportunity to litigate, in order to satisfy any due process concerns. • the procedure of each arbitration; and • agreement on the place of arbitration. unless such genuine consent exists. Third-Party Effect of Arbitral Awards
134 CHAMBERS.COM
Powered by FlippingBook