In this article, Gaëtan ZEYEN – a member of the Brussels Bar and Independent Arbitrator, discusses recent changes to key provisions of the Belgian Arbitration Code.
Changes to the Arbitration Code
Through a so-called ‘pot-pourri’ Law dated 25th December, 2016 (hereinafter referred as to the ‘Arbitration Law’), the Belgian lawmaker has introduced some changes to the Belgian Arbitration Code (cf. Articles 1676 à 1722 of the Belgian Judicial Code). These – relatively slight – changes serve clarification purposes mainly.
Competence of Belgian judges
According to the Belgian arbitration rules, [Belgian] judges are competent (particularly in relation with ‘interim and conservatory measures’) as long as the place of arbitration has not been determined (cf. Article 1676, §6 of the Belgian Arbitration Code). The Arbitration Law confirms this principle and states clearly – by reformulating the 7th paragraph of afore-mentioned Article 1676 – that the Belgian Arbitration rules must be applied (i) when the place of arbitration is in Belgium AND/OR (ii) when the parties have agreed so. It is worthy to note that the parties may – as a matter of evidence – also decide to apply said Belgian Arbitration rules in case the place of arbitration is abroad (i.e., outside Belgium). As a general rule (there are some legal exceptions), the Tribunal of first instance – entitled to take the final decision (“statuant en premier et en dernier ressort”) – is competent for any action brought in relation with the Belgian Arbitration Code.
The Arbitration Law clarifies how the territorial competence of the Tribunal of first instance must be determined. As a general rule, the Tribunal of first instance, whose seat is located in the judicial district/arrondissement of the Court of Appeal in which the place of arbitration was fixed, will be territorially competent. If such a place of arbitration was not determined or is situated outside Belgium, the Tribunal of first instance, whose seat is located in the judicial district/arrondissement of the Court of Appeal which would have been competent if the proceedings was not subject to arbitration, will be territorially competent.
‘Exequatur’ for (i) the ‘Interim and Conservatory Measures’ and (ii) for the ‘Arbitral Award’ ‘Interim and conservatory measures’ granted by an Arbitral Tribunal must be declared enforceable (‘exequatur’) by the Tribunal of first instance (through an unilateral request/”requête unilatérale”), entitled to take the final decision (“statuant en premier et en dernier ressort”) (in accordance with Article 1680, §5).
As regards the recognition and enforceability of an arbitral award, it is worthy to note that such a request also needs to be filed by an unilateral request (“requête unilatérale”) with the Tribunal of first instance, entitled to take the final decision (in accordance with Article 1680, §5). For the purpose of such a proceedings (for the recognition and enforceability of an arbitral award), the Requesting Party must elect its domicile within the judicial district/arrondissement of the Tribunal of first instance (cf. Article 1720, §1er/1).
Arbitral award
As a final remark, the Arbitration Law also reduces – slightly – the (sometimes burdensome) formalities that need to be accomplished in relation with the arbitral award: firstly, the arbitral award should no longer mention the place where the arbitral award was rendered and secondly, there is no further duty to file the original of the award or a copy of arbitration agreement with the Tribunal of first instance.
© Gaëtan ZEYEN April 2017
Independent Arbitrator
President of the Belgian Delegation of the European Court of Arbitration
President of the Arbitration Court with the Belgian-Russian Chamber of Commerce in Moscow
eulawandarbitration.com 