BELGIUM Law and Practice Contributed by: Hugo Keulers, Sandra Lodewijckx, Tine Meurs and Thomas Verheyen, Lydian
Arbitration is often used in case of industrial risk insur- ance, financial lines, professional indemnity, casualty and reinsurance disputes. There is no real clear pref- erence for institutional arbitration (in Belgium, often CEPANI arbitration) as opposed to ad hoc arbitration. Expert determination is often incorrectly labelled as arbitration in Belgian insurance contracts. 3.2 Enforcement of Arbitral Awards Belgium is a party to the New York Convention, which facilitates the enforcement of foreign awards in Bel- gium. Parties must file an enforcement request with one of the courts of first instance in the city of an appeal court of the (legal) place of arbitration or, in case of a foreign place of arbitration, of the place where the case would have been tried in the absence of arbitration. The test applied by the court will be fairly limited. In essence, the court will check: • whether the parties agreed to arbitration; • whether the rights of defence of any of the parties were not violated; and • whether the arbitration award does not violate any provisions of public order in Belgium. In case of a domestic award, the party that was con- victed may also apply to the same court to obtain a ruling setting aside or annulling the arbitral award. 3.3 Practical Use of Arbitration in Insurance Matters Arbitration is most frequently used in financial lines insurance policies and is also used in industrial risk insurance, professional indemnity, casualty and rein- surance disputes. W&I insurance contracts, in par- ticular, typically have a Cepani or ICC arbitration clause. Arbitration proceedings are indeed confiden- tial, although arbitration awards in coverage disputes are sometimes published in legal journals with the approvals of both parties because of their very rel- evant legal learnings. Unless otherwise provided for by the parties (which is rarely the case), arbitration is in first and final instance and there is no appeal pos- sibility. Annulment proceedings do not constitute a rehearing of the case, as they are based on a limited number of legal grounds.
In reinsurance contracts, Bermuda arbitration, the London Court of International Arbitration (LCIA) arbi- tration and ARIAS arbitration are often applied, usually in combination with Bermuda or English law. These clauses are valid and enforceable in the context of a reinsurance agreement. 4. Coverage Disputes 4.1 Evolving Trends in Coverage Disputes Mediation has slowly started to find its way in insur- ance policies and is used more often as a dispute resolution mechanism for coverage disputes. Insur- ance policy wordings are not generally adapted based on results achieved in coverage disputes. 4.2 Policy Wordings and Interpretation Developments A recurring trend in recent years is that when inter- preting policy wordings, some Belgian courts appear to decide, as a rule, in favour of the insured or poli- cyholder, rather than in favour of the insurer. There is a specific provision in the Belgian Insurance Act on interpretation, which states that ‘in case of doubt’ about the meaning of a policy clause, the interpre- tation that is most favourable to the policyholder or insured will prevail. This provision is sometimes used to ensure a positive outcome for the policyholder or insured, even in cases where the clause as such is drafted in a clear manner, using generally accepted market wording, where it can therefore be argued that there is no actual doubt about the meaning of a policy clause. Lower courts apply this interpretation rule to give a different meaning to the clause than the gener- ally accepted market meaning. This rule of interpretation, however, does not apply to large risk insurance contracts, in which case the general interpretation rules apply. 4.3 Cyber and Technology-Related Coverage Issues Many cyber policy disputes relate to the application of prevention forfeiture clauses and the quantum deter- mination of third-party claims, which may sometimes be exaggerated by policyholders in order to maintain good commercial relations with customers and/or
27 I NSURANCE L I T IGATI O N 2026
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