BELGIUM Law and Practice Contributed by: Dominique Blommaert, Didier Bracke, Jens Benoot and Lydie Van Muylem, Janson
12. Alternative Dispute Resolution (ADR) 12.1 Views of ADR Within the Country Alternative dispute resolution (ADR) has gained con- siderable traction in recent years, following a change in the Judicial Code which led Belgian courts to increasingly promote mediation. See 12.2 ADR Within the Legal System in this regard. Arbitration (see 13. Arbitration ) and mediation are the most commonly used ADR methods in Belgium. 12.2 ADR Within the Legal System Judicial Mediation Belgian courts increasingly promote judicial mediation as a method of alternative dispute resolution in civil and commercial litigation. Courts often actively inquire whether the parties would agree to the appointment of a mediator. Courts even have the power to appoint a mediator ex officio at the introductory stage of the legal proceedings, unless all parties indicate that they do not wish to engage in a mediation process. Nota- bly, there are no penalties for refusing mediation. Even when a judicial mediator is appointed by the court, the mediation process is strictly confidential. The mediator is not entitled to inform the court of dis- cussions held between the parties in the framework of the mediation. In addition, parties remain free to end the mediation process at any time. Neither the mediator nor the parties are entitled to disclose to the court who pulled the plug or why the mediation was unsuccessful. If the mediation is successful and results in a settle- ment, any party can request the court to homologate the settlement agreement. By doing so, the parties will have an enforceable title and will thus be able to enforce the settlement agreement against the oppos- ing party. Conciliation Specific chambers in some courts are exclusively ded- icated to conciliation ( verzoening/conciliation ). Unlike mediation, reconciliation is managed by a judge and is therefore not confidential. However, this method is
less common and typically reserved for disputes with limited financial stakes. 12.3 ADR Institutions The main ADR institution in Belgium is CEPANI.
13. Arbitration 13.1 Laws Regarding the Conduct of Arbitration
The laws on arbitration in Belgium are laid down in the Judicial Code and are largely inspired by UNCITRAL. These laws deal with the conduct of arbitration and regulate the recognition and enforcement of arbitral awards. Arbitration in Belgium can either be ad hoc or organised subject to the rules of an arbitration institu- tion (for instance, CEPANI or the ICC). 13.2 Subject Matters Not Referred to Arbitration Certain matters cannot be referred to arbitration, such as divorce, citizenship, employment agreement disputes, residential lease agreement disputes, non- contractual disputes with public entities, and certain IP disputes. 13.3 Circumstances to Challenge an Arbitral Award Challenging an arbitral award is only possible subject to strict conditions. The challenging party must prove that: • a party to the arbitration agreement was incapaci- tated; • the arbitration agreement was invalid under the applicable law of the agreement; • it was unable to defend its rights or was not informed of the arbitrator(s) or the arbitration pro- ceedings; • the arbitral award rules on a dispute that falls outside the scope of the arbitration agreement or
exceeds the terms of such agreement; • the award lacks sufficient reasoning;
• the composition of the arbitration tribunal or the proceedings are not in accordance with the arbitra- tion agreement; or
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