BELGIUM Law and Practice Contributed by: Dominique Blommaert, Didier Bracke and Jens Benoot, Janson
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 sub- ject to the rules of an arbitration institution (for instance, CEPANI or the ICC). 13.2 Subject Matters Not Referred to Arbitration Certain matters cannot be referred to arbitra- tion, 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 inca- pacitated; • 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 proceedings; • the arbitral award rules on a dispute that falls outside the scope of the arbitration agree- ment or exceeds the terms of such agree- ment; • the award lacks sufficient reasoning;
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 medi- ator ex officio at the introductory stage of the legal proceedings, unless all parties indicate that they do not wish to engage in a mediation pro- cess. Notably, there are no penalties for refusing mediation. Even when a judicial mediator is appointed by the court, the mediation process is strictly confi- dential. The mediator is not entitled to inform the court of discussions 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 settlement, 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 agree- ment against the opposing party. Conciliation Specific chambers in some courts are exclu- sively dedicated to conciliation ( verzoening/ conciliation ). Unlike mediation, reconciliation is managed by a judge and is therefore not con- fidential. 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.
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