A. LEGISLATION AND RULES
A.1 Legislation
A Bill was passed on 28 March 2024 – and applies to any arbitration initiated as of 8 April 2024 – to amend certain provisions of the Judicial Code relating to arbitration to reflect the evolution of the arbitration practice in Belgium (as notably influenced by international arbitration trends). The key provisions that were amended are:
- Annulment of the Award: the Bill clarifies that in cases of fraud in the frame of the arbitration, the three-month period to file an annulment appeal of any award (or partial award) issued in the frame of such arbitration will start from the discovery of the fraud by the party seeking annulment of the award (article 1717, § 4, b) and not, as it would normally be the case, from the notification of the decision by the arbitrator(s);
- Suspension of the award enforcement by Belgian Courts: The Judicial Code now explicitly states that whilst discussing the annulment of an award or its exequatur, the Belgian Courts of First Instance (only courts competent to rule on annulment/exequatur decisions) can suspend the enforcement of such an award (articles 1717, § 8, and 1721, § 2/1);
- Consequence of an annulment on its Exequatur: The Judicial Code now explicitly provides that the exequatur of an award that is subsequently annulled ceases to have effect, regardless of whether the award was rendered in Belgium or abroad (article 1720, § 7);
- Partial Annulment: The Judicial Code now explicitly confirms that if only part of the award is defective, only that part will be annulled (article 1717, § 2).
These amendments are included in the Judicial Code to ensure greater clarity of arbitration proceedings in Belgium and, as a consequence, become a more strategic pole for international arbitrations.
Besides, it is worth noting that the Belgian Centre for Arbitration and Mediation (CEPANI) published an updated set of rules (2023 CEPANI Rules), including one significant amendment under its article 15.1. As per this article, when appointing arbitrators, the CEPANI’s Appointments Committee and President must specifically consider diversity and inclusion (including ethnicity, gender, religious and political beliefs, sexual orientation, disability, socioeconomic background and status, etc.), in addition to availability, qualifications, and the ability to conduct arbitration according to the CEPANI Rules.
Although the new CEPANI Rules only require the Appointments Committee and President to consider diversity and inclusion, and not the parties or their counsel, this amendment is a progressive step towards greater diversity and inclusion in international arbitration and may inspire other institutions to adopt similar rules.
A.2 Institutions, rules and infrastructure
The leading arbitral institution in the jurisdiction is the aforementioned Belgian Centre for Arbitration and Mediation (CEPANI).
Their 2024 report, published in January 2025, provides information regarding pending and completed proceedings administered by CEPANI such as the origin of the parties, the language and the seat of the arbitration, the constitution of arbitral tribunals, statistics on the appointed arbitrators, the average duration of CEPANI arbitration procedures and more.
It is worth highlighting that, in this report, CEPANI confirms, as previously announced, the general trend of internationalization of arbitration proceedings. It notably highlighted in that respect its growing significance on the international ADR scene, as reflected by the nationality of the parties (42% of arbitration proceedings introduced in 2024 involving at least one international party), the language of the arbitration and the nationality of the appointed Arbitrators.
There has also been a general increase in the amounts at stake. Notably, 32% of the cases handled involved disputes ranging from EUR 1,000,000 to EUR 10,000,000, while 5% of the cases had disputes exceeding EUR 10,000,000. Some cases even surpassed the EUR 100,000,000 threshold.
The 2024 report also shows a 10% increase in expedited proceedings (i.e., cases for demands inferior to EUR 100,000 which are dealt with in an accelerated way).
It is also interesting to note that, whilst the CEPANI report noted a general increase of arbitration proceedings in most sectors, the key cases handled by the CEPANI in 2024 pertained mostly to service agreement disputes (41%), share purchase agreement disputes (34%) or corporate disputes (17%).
Lastly, CEPANI confirmed its continued commitment to ensure that each case is handled with the requested efficiency and rapidity and in accordance with the specific needs of the Parties.
B. CASES
B.1 National procedural law concepts do not apply to arbitration proceedings
For years, there have been discussions amongst scholars and practitioners as to the applicability of the whole Belgian Judicial Code – as opposed to only its chapter 6 specifically focusing on arbitration – to all Belgian arbitration proceedings.
This question was finally settled by the Belgian Supreme Court (Court of Cassation) in its decision of 24 April 2023 in the frame of the Emek Insaat STI Ltd v. WTE Wassertechnik GmbH[1] case.
The dispute took place in the frame of an annulment proceedings against an ICC arbitral award and centered on the question of the validity of such an award given that it was drafted by the secretary of the arbitral tribunal and not the arbitrators themselves.
More specifically, the appellant argued that article 11 of the Judicial Code, which prohibits judges from delegating their decision-making power in the frame of litigations was equally applicable – at least by analogy – to arbitration proceedings, with the consequence that, by letting its secretary draft the award, the tribunal had violated the aforementioned article 11. The award was thus to be set aside.
In its decision, the Supreme Court (Court of Cassation) ruled as follows:
- It first stated that the arbitral secretary drafting the award does not amount to a delegation of the arbitrators’ decision-making power, as the ICC note to the parties and arbitral tribunals on the conduct of arbitration under the ICC Rules of Arbitration clearly indicates that “the fact that an arbitral tribunal asks the secretary to prepare written notes or memoranda does not in any way relieve the arbitral tribunal of its obligation to personally review the file and/or draft any decision of the arbitral tribunal itself” Additionally, the court indicates that “by using the terms ‘and/or,’article 187 implicitly but certainly authorizes the secretary to draft all or part of a draft award, provided that the arbitral tribunal personally reviews the file and validates or corrects the draft in light of its examination of the file.”
- The court then went further by specifying that article 11 of the Judicial Code simply did not apply in this case, as only the provisions of chapter 6 of the Judicial Code apply to arbitration proceedings.
This decision is key in the frame of arbitration because, as summarized by the Global Arbitration Review (GAR), “[it] has freed arbitration from the influence of national procedural law concepts and has chosen to recognize arbitration as an autonomous method of resolving international disputes.”[2]
B.2 Bilateral investment treaties do not apply to people having nationality of both signatory countries
This case (Dawood Rawat v. The Republic of Mauritius[3]) pertained to the interpretation of bilateral investment treaties by Belgian courts. Mr. Rawat (a Franco-Mauritian) initiated a UNCITRAL arbitration based on a bilateral investment treaty between France and the Republic of Mauritius. The arbitral tribunal, which was seated in Brussels, declared itself incompetent based on the treaty, which excluded dual nationals from its scope[4].
Mr. Rawat then initiated annulment proceedings before the Brussels Court of First Instance[5], which dismissed his claim. The issue revolved around the notion of “national” in the treaty, which Mr. Rawat argued was misinterpreted by the arbitral tribunal. Rawat noted that the treaty did not define the term “national”. However, as rightfully pointed out by the arbitral tribunal in its award, the treaty was governed by the Vienna Convention on the Law of Treaties. The Brussels Court of first instance recalled that this convention provides that to interpret a treaty, one should consider its purpose, object, context, the ordinary meaning of the words, and its effective application, without any of these elements taking precedence over the others.
The Brussels Court of First Instance interpreted the bilateral treaty based on these elements. First, it noted that any bilateral investment treaty aims at intensifying economic cooperation between the two concerned countries and protecting and stimulating foreign investments. Regarding more specifically the bilateral investment treaty at stake between France and the Republic of Mauritius, the court highlighted that article 2 provides specific protection for foreign investments stating that those should be treated as national investments. The court also stressed that conversely the treaty does not cover nor, a fortiori, protect French investments in France or Mauritian investments in the Republic of Mauritius. Relying on this specific purpose of protection of foreign investment and on the definition of “investor” as excluding people with the dual nationality covered by the treaty at stake, the court concluded that the arbitral tribunal rightfully declined its jurisdiction.
Mr. Rawat decided to file an appeal against the Brussels Court of First Instance’s decision. The Belgian Supreme Court (Court of Cassation) confirmed the interpretation of the treaty of the Brussels Court of First Instance and the subsequent jurisdiction decline.
B.3 Arbitrability of distributorship agreements in Belgium
This case is a highly significant ruling regarding exclusive commercial distributorship agreements, which has caused a significant stir in the world of international distribution, with the Belgian Supreme Court (Court of Cassation) once again giving more leeway to arbitration.
In the frame of this decision (Thibelo BV v. Stölzle-Oberglas[6]) , the Belgian Supreme Court overturned a 50-year-old case-law according to which, any arbitration clause included in a distributorship agreement implemented, in whole or in part, on the Belgian territory (or a portion thereof) could only be enforced provided that the agreement would also designate Belgian law – or any law equivalent in terms of protection – as the applicable law.
The rationale behind this case law was twofold:
- First, Belgian courts wanted to ensure that extensive legal protection offered by Belgian law to exclusive distributors, notably guarantying them against unwarranted termination and providing reasonable notice period and/or compensation in lieu of notice, would not be circumvented by the inclusion of an arbitration clause in the distributorship agreement at stake;
- Second, they wanted to ensure compliance with the Belgian Economic Law Code (ELC) which expressly stipulates that to the extent the distributorship agreement is implemented, in whole or in part, on the Belgian territory (or a portion thereof), the aggrieved distributor has always the right to sue its principal in front Belgian courts which will have to apply Belgian law.
In the present case, the matter involved an exclusive distributorship agreement between a Belgian distributor and an Austrian principal, governed by Austrian law, and designating Vienna as the seat for arbitration. The Belgian distributor, given the aforementioned case law precedent, filed a claim for damages before the Belgian courts. The Austrian defendant invoked the arbitration clause to decline the jurisdiction of the Belgian courts. Whilst, the Court of First Instance had ruled that it had jurisdiction, the Court of Appeal decided to overrule this decision, siding in favor of the defendant and of the applicability of the arbitration clause[7]. The Belgian distributor filed an appeal before the Supreme Court, expressly referring to the latter’s own case law precedent.
In its decision, the Supreme Court started by reminding the parties of article 1676, § 1 of the Belgian Judicial Code, which allows any dispute with an “economic interest'” to be settled through arbitration. The court then confirmed that the termination of a distribution agreement, as it was the case in the matter at stake, may be considered as a dispute bearing some economic interest in the sense of article 1676. Lastly, relying on the CJEU’s ruling in Unamar[8], the court stressed that the Belgian ELC mainly safeguards interests of a private nature, with the consequence that it does not qualify as mandatory under the Rome I Regulation.
In light of the above, the Supreme Court decided that arbitration clauses must be complied with regardless of the application of Belgian law or of any foreign law providing similar protection, thereby overturning its previously well-established caselaw.
[1] Court of Cassation, Emek Insaat STI Ltd v. WTE Wassertechnik GmbH, no. C.21.0548.F/1, 24 April 2023.
[2] A. Nuyts and B. Hardy, “The European Arbitration Review – Belgium”, Global Arbitration Review, 7 March 2024.
[3] Court of Cassation, Dawood Rawat v. The Republic of Mauritius, no. C.22.0012.F/1, 6 April 2023.
[4] Dawood Rawat v. The Republic of Mauritius, PCA Case no. 2016-20.
[5] Brussels Court of First Instance, M Dawood Rawat v. The Republic of Mauritius, no. 18/6033/A,
30 June 2020.
[6] Court of Cassation, Thibelo BV v. Stölzle-Oberglas GmbH, no. C.21.0325.N/1, 7 April 2023.
[7] Court of Appeal of Antwerpen, Thibelo BV v. Stölzle-Oberglas GmbH, no. 2020/AR/136, 10 March 2021.
[8] Unamar / Navigation Maritime Bulgare – https://curia.europa.eu/juris/document/document.jsf?text=&docid=143185&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=27483352
