A. LEGISLATION AND RULES
Arbitrations seated in Belgium are governed by the Belgian Law on Arbitration (BLA), which is set out in part VI of the Belgian Judicial Code (BJC).
There has been no significant change to the BLA in the year under review, and there are currently no changes under consideration or being proposed at the legislator’s level.
A.2 Institutions, rules and infrastructure
The Belgian Centre for Arbitration and Mediation (CEPANI) is the largest and most well-known arbitration and mediation institution in Belgium. As flagged in last year’s edition of the Baker McKenzie International Arbitration Yearbook, an updated set of rules governing the arbitral proceedings before CEPANI entered into force on 1 January 2020 and continued to apply in 2021.
In addition, following the introduction of new rules regarding digital communication in 2020 and the general digitalization as a result of the COVID-19 pandemic, CEPANI published a checklist for remote hearings in April 2021. This checklist is inspired by similar guidelines of other arbitration institutions such as the International Chamber of Commerce (ICC), and the Chartered Institute of Arbitrators. Complementary to the CEPANI Arbitration Rules, it lists the (additional) considerations that must be taken into account when organizing virtual hearings, for example, with respect to recordings and cyber-protocols. It also offers suggested clauses that may be included in procedural orders or the arbitration’s terms of reference (for example, concerning data protection).
B.1 Time limitation period for the annulment of a fraudulently obtained award
One of the grounds for the annulment of an award is the fact that it was obtained by fraud (article 1717, section 3, b), iii), BJC). The annulment proceedings must be lodged within three months from the notification of the award (article 1717, section 4, BJC).
On 28 January 2021, the Constitutional Court held that article 1717, section 4 BJC was unconstitutional as it creates discrimination vis-à-vis parties to state court proceedings, who may request the judgment to be revoked within six months of the discovery of the fraud (articles 1132 et seq. BCJ).
The Constitutional Court ruled that the difference between the respective periods (three months for arbitration versus six months for state court proceedings) was not discriminatory in itself, because a shorter time limitation period is justified by the legislative objective of a swift and effective dispute resolution, with the intent to make Belgium an attractive place for international arbitration.
However, the different starting point of both periods (the discovery of the fraud versus the notification of the award) was held to be a disproportionate and unjustified limitation of the rights of the litigants who chose arbitration when the fraud was discovered more than three months after the notification of the award.
The legislator is now required to remedy this unconstitutionality. In the meantime, the annulment of a fraudulently obtained award will have to be filed “within a reasonable time after the discovery of the fraud”.
B.2 Belgium requests an opinion on the intra-European application of the arbitration provisions of the future modernized Energy Charter Treaty
In its Achmea ruling (C-284/16 – 6 March 2018), CJEU decided that investor-state arbitration clauses in bilateral investment treaties between EU countries (‘intra-EU BITs’) are incompatible with EU law because they infringe the autonomy of Union law and undermine the CJEU’s role as the final arbiter of EU law.
The Achmea decision left arbitrators and counsels with many outstanding issues and unanswered questions.
One of these questions is whether the Achmea judgment only applies to the BITs or also to multilateral treaties such as the Energy Charter Treaty (ECT), which constitutes the basis for a significant number of arbitration proceedings.
In December 2020, Belgium submitted a request to the CJEU for an opinion on the compatibility of the intra-European application of the arbitration provisions of the future modernized ECT with EU law.
Whilst the CJEU’s decision is still pending and expected to be rendered in the course of 2022, its Komstroy decision (C-741/19 – 2 September 2021) already provides a clear indication of what the CJEU should decide.
In the Komstroy judgment, the CJEU clarified that the reasoning applied in Achmea extends to all intra-EU disputes under the ECT – despite the multilateral character of the ECT and the fact that it also governs relationships with non-EU countries. The CJEU concluded that the investor-state arbitral provisions of the ECT “must be interpreted as not applicable to disputes between a Member State and an investor from another Member State concerning an investment made by the latter in the first Member State.”
According to the CJEU, this is because the autonomy of the EU legal order and the specific character of EU law call for a consistent interpretation of EU law. The latter cannot be ensured by mechanisms involving private arbitrators rather than national courts, since arbitrators are not bound to apply EU law.
B.3 Role of the arbitral secretary
On 17 June 2021, the Brussels Court of First Instance rendered a judgment about the role of the arbitral tribunal secretary. The claimants sought to set aside an ICC arbitral award, inter alia, on the ground that the arbitrators did not personally fulfill their mandate but instead delegated their jurisdictional power.
It appeared that the secretary drafted a list of questions to be asked to the experts at the hearing, as well as a portion of the award, including the arbitral tribunal’s reasons for the decision.
The court refused to set aside the award, in view of the specific circumstances of the case.
The court held that in practice, arbitral tribunals increasingly resort to the assistance of a secretary whose tasks may go beyond the purely administrative and organizational framework. As to the allegation that the tribunal had delegated its power, the court ruled that an arbitral tribunal has a procedural right to use an assistant or secretary for the drafting of an arbitral award as long as, in the end, the arbitrators have assumed responsibility for the draft version
In this specific case, the court stressed that the parties accepted the conduct of the arbitration and the appointment of the secretary under the then applicable “Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration”.
Pursuant to this ICC Note, the secretary – upon the tribunal’s directions and under its supervision – performs several duties, including managing the tribunal’s file, conducting legal research, drafting and reviewing procedural documents, drafting parts of an award, organizing procedural and evidentiary hearings, and attending the tribunal’s deliberations.
It follows from this provision that the secretary may be required to perform intellectual work, which may affect the impact on the decision-making process, but always subject to the duty of the arbitral tribunal to personally review, validate or correct any said drafts in the light of its examination of the file.
The parties furthermore agreed to the appointment of the secretary after having read her curriculum vitae, which showed that she was in her thirties, has been a lawyer for 9 years, and had followed several training courses in arbitration, in particular at the ICC where she had followed specific training for administrative secretaries.
The court also held that the mere fact that the secretary is entrusted with the drafting of all or part of the award or a list of questions to the experts is in any event not in itself sufficient to demonstrate a delegation of the arbitrators’ decision-making power.
It all depends on the way in which the arbitrators conceive and exercise their mission, and this is ultimately a question of the integrity and professional conscience of the arbitrators whom the parties have chosen precisely for their qualities.
In this respect, the president of the arbitral tribunal had testified that there was “not a single sentence or footnote that had not been reviewed, checked and if necessary corrected in the light of the views and the deliberations of the arbitral tribunal.”
B.4 Violation of public policy
Arbitral awards can be set aside, and recognition and enforcement can be refused inter alia on the ground of public policy violation (articles 1717(b)(ii) and 1721(1)(b), BJC).
In a judgment of 26 February 2021, the Court of Cassation ruled that those provisions do not require the court to reassess the dispute in the light of the provisions affecting public policy that were applied in the arbitral award, but only require the court to check whether either the arbitral award or its recognition or declaration of enforceability is contrary to public policy.