This year Belgium has already seen significant reforms in its arbitration rules. These innovative changes include the adoption of a new Arbitration Act and the adoption of new Arbitration and Mediation Rules by the Belgian Centre of Arbitration and Mediation (CEPANI).
The Arbitration Act
The Arbitration Act dated 24 June 20131 entered into force on 1 September 2013. The Act, which is based on the UNCITRAL Model Law, reforms the section of the Belgian Judicial Code which deals with arbitration proceedings, without making a distinction between domestic and international arbitration.
By adopting a progressive Arbitration Act while keeping some Belgian idiosyncrasies, Belgium has indicated its intention to be a good modern forum for arbitration and an attractive place for users of international arbitration.
The following changes are of particular interest among those brought about by the new Arbitration Act:
Suppression of the double instance of jurisdiction (Art. 1680§5 of the Judicial Code): Under the current regime, an arbitral award may be challenged before the Tribunal of First Instance of the seat of arbitration. An appeal against a decision of the Tribunal of First Instance may then be lodged before the Court of Appeal, and the decision of the Court of Appeal may, in turn, be challenged before the Court of Cassation if the conditions for such a challenge are met. Under the new Act, there will be no opportunity to lodge an appeal against a decision of the Tribunal of First Instance, but a challenge before the Court of Cassation will still be available. However, a challenge to an arbitral award is permitted only on the basis of a number of limited grounds (Art. 1717 of the Judicial Code). In addition, the new Act provides that if the award can be "saved", i.e., the award can remain in effect but requires some amendment, the Tribunal of First Instance can send the award back to the arbitral tribunal in order for the tribunal to revise it and eliminate the ground for annulment.
Clarification of the fact that interim measures can now be ordered by the arbitral tribunal on the request of one of the parties, save for the conservatory attachment of assets (Art. 1691 of the Judicial Code). Interim measures can be ordered in the form of an arbitral award or in another form, such as a procedural order. Despite the existence of concurrent arbitration proceedings, interim measures can also be granted by the President of the Tribunal of First Instance in the course of summary proceedings, in which urgency must be demonstrated.
Other changes include the introduction of a limitation period within which an award must be enforced of ten years from the date of the notification of the award, the introduction of principles according to which the arbitral tribunal must ensure the equal treatment of the parties, and the clarification of the double criterion of arbitrability (i.e. disputes may be arbitrated when: (i) the dispute is of a patrimonial nature, i.e. of monetary value; or (ii) the dispute is not of a patrimonial nature but the parties can agree on the subject of the dispute).
The CEPANI Rules
The new CEPANI Rules2 apply to arbitration and mediation proceedings commenced on or after 1 January 2013, unless the parties have agreed to submit their dispute to an earlier version of the Rules in effect on the date of the agreement.
The new Arbitration Rules contain new articles dealing with multiple parties (Art. 9), multiple contracts (Art. 10), the intervention of a third party in the arbitration proceedings (Art. 11) and joinder (Art. 13).
The new rules also provide for urgent interim and conservatory measures to be available before the constitution of the arbitral tribunal. In such cases the CEPANI will appoint a sole emergency arbitrator for the purpose of making a decision in relation to the interim measures (Art. 26).
Other new provisions of the Arbitration Rules are the statement of availability, acceptance and independence that prospective arbitrators must sign and their limited liability, the confidentiality of the arbitration proceedings (Art. 25) and the correction and interpretation of awards (Art. 33).
The new Mediation Rules require mediators to sign a statement of acceptance, availability and independence and to comply with the Rules of Good Conduct set out in Schedule II (Art. 5).
Further, the mediator has a duty to ensure that the proceedings are properly conducted and must create a favourable climate to assist the parties to find a solution to their dispute (Art. 7.1). The mediator must also ensure that the parties are always treated on an equal basis (Art. 7.2).
The mediation procedure is also confidential (Art. 10).
These reforms of the Belgian arbitration rules have been largely welcomed by the arbitration community. They reflect current international arbitration practice and the needs of the parties involved in arbitration proceedings. These progressive rules are in accordance with the concepts of flexibility and efficiency that must govern any arbitration and are intended to reinforce the position of Belgium as an attractive seat for dispute resolution procedures.
For more information on these rules, please contact:
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1 The new Act was published in the Belgian Official Gazette on 28 June 2013, p. 41263.