BELGIUM Law and Practice Contributed by: Larissa De Wulf, Carolyn Vanthienen and Alexandra Goossens, Tiberghien
process is successful, the parties sign an agree - ment that can be submitted by the parties’ law - yers to the competent court for approval. Arbitration Parties having a dispute may agree to resort to an arbitral tribunal. This allows the parties to have their dispute resolved not by the courts of law but, rather, by one or more arbitrators cho - sen and remunerated by the parties. The arbitral tribunal makes an arbitration award after hearing the parties and studying the documents com - municated on file. In cases with international elements, Belgian private international law determines the juris - dictional rules applicable to the Belgian courts. The child’s habitual residence is the main crite - rion. In some cases, the child’s nationality or the location of the parents’ property may also serve as a jurisdictional connecting factor. Parental Responsibility and Protection of Minors 3. Child Law 3.1 Choice of Jurisdiction If the minor child is habitually resident in the ter - ritory of a member state of the Brussels II ter Regulation/Brussels II bis Regulation (depend - ing on the date of the application), the court will apply that regulation. As a general rule, the Brussels II ter Regulation states that the Belgian courts have jurisdiction in matters of parental responsibility over a child who is habitually resident in Belgium at the time the court is seized. The habitual residence of the child is the place where the child has the centre
of their social life, which is determined based on the specific facts and circumstances of the case. It is also important to note that the Belgian juris - diction will be assessed at the time the court is seized. This means that the potential relocation of a child to another country during the Belgian proceedings will not affect the international juris - diction of the Belgian court. However, the Brussels II ter Regulation states some exceptions – for example, in the case of the lawful move of a child or wrongful removal or retention (Articles 8, 9, 10, 11 and 12). If the child has their habitual residence in the territory of a state that is not a member of the Brussels II ter Regulation, the Belgian court will apply the rules of the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recogni - tion, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children (the “Hague Convention of 19 October 1996”) if the state where the resi - dence of the child is fixed is subject to it. According to the Hague Convention of 19 Octo - ber 1996, a court may have jurisdiction based on the following: • the habitual residence of the child (Article 5); • as regards refugee children, or children whose habitual residence cannot be estab - lished, the presence of the child (Article 6); • in the case of wrongful removal or retention of the child, the habitual residence of the child immediately before the removal or retention of the child (Article 7); • in exceptional cases, a contracting state that is better placed to assess the best interests of the child (Articles 8 and 9); • the discretion of the court to protect the body or property of a child where the court is deter -
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