Legal Reform of the Belgian Judicial Code: a Stimulus for Arbitration

The Belgian Parlement has recently adopted a new law which reforms the procedural rules on arbitration , as set out in the sixth chapter of its judicial code. The new law, incorporating the UNCITRAL Model Law on arbitration, demonstrates Belgium’s ambition to become a modern forum for Arbitration. The Arbitration Act of 24 June 2013 entered into force on 1 September 2013.History The Arbitration Act, which is based on the UNCITRAL MODEL LAW, has been enacted on 24 June 2013 after a long period of reflections within the Working group CEPINA and with the political support of the Minister of Justice, Annemie Turtelboom. The amended judicial code provides a more favourable environment for arbitration in which the annulment of the arbitral award appears only as a last resort option. Purposes By introducing the Arbitration Act, Belgium contributes to the harmonisation of international arbitration rules and presents itself as a privileged place for both domestic and international arbitration. It is therefore not surprising that the autonomy of parties as well as the role of the court during the arbitral proceedings were in the centre of the debate. The main novelties in the law of 24 June 2013 are briefly described below: 1. Arbitral Agreement and scope – The scope of “arbitrability” is expanded to all disputes involving an economic interest. This means that one can opt for arbitration if the dispute is of a patrimonial nature and this includes more commercial litigations (art. 1681 Judicial Code). Therefore, the economic interests of public order, such as competition law disputes, can be handled by arbitration. – A written arbitration clause is not needed anymore and the burden of the proof lies with the one who invokes it (art. 1681 Judicial Code). 2. The Arbitral Proceedings – The procedural delay, penalising the arbitral procedures in Belgium by its slowness, has been reduced by the suppression of the double level of jurisdiction (art. 1680§5 Judicial Code). As from now, the decision of the Court of first instance is final, i.e. there is no further appeal possible except for a procedure before the Belgian Supreme Court (‘Court of Cassation’). – Arbitration-related court proceedings will be brought before the courts of first instance that have their seat with the courts of appeal. This mechanism will undoubtedly entail the specialisation of magistrates (art.1680§6-7 Judicial Code). – Parties are allowed to contractually stipulate a challenge procedure for the arbitrators. They could do so by referring to the arbitration rules of an arbitral institution (art. 1687§1 Judicial Code). 3. Judicial assistance for Arbitration – The organisation of a system of preliminary and interim measures ordered by the arbitral tribunal (art. 1691 to 1696 Judicial Code). – In case of necessity, the assistance of state courts with regard to the collection of evidence (art. 1697 & 1698 Judicial Code). 4. Principles of consecration – The main principles that should guide the arbitration proceedings are stated explicitly: loyalty of the debates, equality of the parties and respect for the rights of the defence (art. 1699 Judicial Code). – Adaptability and flexibility granted to the parties in an agreed organisation of arbitral proceeding (art.1700§1 Judicial Code). – Appeal of the arbitration award is only allowed if it is mentioned in the arbitration agreement (art. 1716 Judicial Code). 5. Procedural Challenges – Arbitral awards can only be set aside on the basis of a limited number of grounds, listed in an exhaustive list (art. 1717 Judicial Code) and only if it is established that the ground did influence the award (art. 1717§2, a) ii & v) Judicial Code). Moreover, the Traveaux préparatoires clarify that the setting aside of an award must be the last resort. The reasoning is mutatis mutandis the same for exequatur procedures (art. 1721 Judicial Code). – Another innovation is the possibility to “save” the arbitration award by giving the state court the possibility to suspend its proceeding and remit the award to the arbitral tribunal in order to eliminate the cause of setting aside (art. 1717§5 Judicial Code). 6. Summary The new Arbitration Act shows Belgium’ intention to facilitate arbitration on the one hand as well as its ambition to position itself as a modern forum for arbitration in Europe on the other hand. Anyway, it is a good starting point to attract a number of international arbitrations to Belgium and in particular to Brussels as the capital of Europe.”