BELGIUM Law and Practice Contributed by: Hugo Keulers, Sandra Lodewijckx, Tine Meurs and Thomas Verheyen, Lydian
These protective provisions do not apply in case of so-called “large risk insurance contracts”, for which contractual freedom remains the basic principle and the insurance contract is governed by the law chosen by the parties. Almost all large risk insurance contracts on the Belgian market include an explicit choice-of- law clause, often applying Belgian law. Reinsurance contracts in their entirety do not fall under the protective provisions of Rome I and con- tractual freedom prevails. Reinsurance contracts are typically not governed by Belgian law but rather by the law of the seat of the reinsurer or English law. 2.2 Jurisdiction and Forum Selection Jurisdiction disputes between Belgian policyholders/ insurers and EU insurers/policyholders are governed by the Brussels I bis Regulation, which contains spe- cific provisions on insurance disputes. In essence, these provisions afford policyholders and insureds a choice to sue insurers before the courts of their own country or, in the case of liability insurance or insur- ance of immovable property, before the courts of the place where the harmful event occurred. However, these protective provisions do not apply in cases of commercial marine and aviation insurance, as well as so-called “large insurance risks”, in which parties can include jurisdiction clauses in the insur- ance contract, which are generally upheld in practice. Some policies contain arbitration clauses and no juris- diction clauses. Arbitration clauses are more popular in financial lines insurance contracts, such as D&O and W&I policies. In case of disputes with non-EU insurers, it must first be established whether an international treaty on this subject is in place or not. This is rarely the case. If there is no relevant international treaty in place, the jurisdiction rules of the Belgian International Private Law Code will apply. 2.3 Cross-Border Disputes and Conflicts Issues Conflicts of law and jurisdiction issues are usually resolved in Belgium by applying the relevant provi- sions of the Rome I Regulation or the Brussels I bis
Regulation. However, disputes around jurisdiction and choice of law are not especially frequent, as most policies provide for clear and enforceable applicable law and jurisdiction/arbitration clauses. For complex insurance disputes, Belgian judges must be familiar with the subtleties in the coverage provided by various insurance policies. Another challenge in arbitration is that it is not always easy in a tight market like Belgium to find a sufficient number of independent arbitrators with availability. 2.4 Anti-Suit Injunctions In Belgium, exclusive jurisdiction clauses or exclu- sive arbitration clauses are usually enforced; claims brought before a Belgian court against such clauses will usually be dismissed. However, this requires the jurisdiction and arbitration clauses comply with man- datory legislation and are drafted in a sufficiently clear manner. 2.5 AI-Related Dispute Resolution and Jurisdiction There is no settled case law related to AI-related dis- pute resolution, choice of law and jurisdiction. How- ever, since many key issues regarding AI, jurisdiction and choice of law are regulated at the EU level, Bel- gian legal developments in these areas will likely fol- low developments at the EU level. 3. Arbitration in Insurance Disputes 3.1 Recognition of Arbitration Clauses The arbitration provisions in certain types of com- mercial insurance contracts and in reinsurance are enforced by the courts; arbitration is a recognised and regulated dispute resolution mechanism under the Belgian Judicial Code, including provisions gov- erning the issue of enforcement of arbitral awards. Courts must declare themselves without jurisdiction if a valid arbitration clause is invoked by one of the par- ties before any substantive argument on the merits is raised (Article 1679, §1 of the Judicial Code). Arbitration is, however, not permitted in the case of many private (non-marine) insurance disputes unless agreed after the dispute arose, which, in practice, rarely occurs.
26 I NSURANCE L I T IGATI O N 2026
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