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 Bélgica
BELGIAN JUDICIAL CODE
SIXTH PART: ARBITRATION
(adopted 4 July 1972, amended 27 March 1985 and 19 May 1998)
Article 1676
Any dispute which has arisen or may arise out of a specific legal relationship
and in respect of which it is permissible to compromise may be the subject
of an arbitration agreement.
Whosoever has the capacity or is empowered to compromise, may conclude an arbitration
agreement.
Without prejudice to the exceptions provided in particular laws, legal persons
of public law may only conclude an arbitration agreement in case the agreement
concerns the settlement of a dispute relating to the formation or the performance
of a contract. Such an arbitration agreement is subject to the same conditions
regarding its conclusion as the agreement whose performance is the subject
matter of the arbitration. In addition, legal persons of public law may conclude
arbitration agreements with respect to all matters, which are determined by
law or by a royal decree deliberated in the Council of Ministers. The decree
may also stipulate the conditions and the rules for the conclusion of the agreement.
The preceding provisions are applicable without prejudice to the exceptions
provided for in law.
Article 1677
An arbitration agreement shall be constituted by an instrument in writing signed
by the parties or by other documents binding on the parties and showing their
intention to have recourse to arbitration.
Article 1678
An arbitration agreement shall not be valid if it gives one of the parties
thereto a privileged position with regard to the appointment of the arbitrator
or arbitrators.
Without prejudice to the exceptions provided for in the law, an arbitration
agreement concluded before a dispute has arisen, and which dispute falls within
the competence of the Labour Tribunal as determined in Articles 578 to 583
( tribunal du travail ) is ipso jure null.
Article 1679
The judge seized of a dispute which is the subject af an arbitration agreement
shall, at the request of either party, declare that he has no jurisdiction,
unless, insofar as concerns the dispute, the agreement is not valid or has
terminated; this exception must be invoked in limine litis .
An application to the judicial authority for conservatory or provisional measures
shall not be incompatible with an arbitration agreement and shall not imply
a waiver of the arbitration agreement.
Article 1680
As arbitrator may act any person who has the capacity to contract, except for
minors even when no longer under parental supervision, persons under guardianship
and those who are either permanently or temporarily excluded from the right
to vote.
Article 1681
The arbitral tribunal shall be composed of an uneven number or arbitrators.There
may be a sole arbitrator.
If the arbitration agreement provides for an even number or arbitrators, an
additional arbitrator shall be appointed.
If the parties have not determined the number of arbitrators in the arbitration
agreement and do not reach agreement on the number, the arbitral tribunal shall
be composed of three arbitrators.
Article 1682
The parties may, either in the arbitration agreement or subsequently thereto,
appoint the sole arbitrator or the arbitrators or entrust the appointment to
a third person. If the parties have not appointed the arbitrators and have
not agreed on a method of appointment, each party shall, when the dispute arises,
appoint an arbitrator or an equal number of arbitrators, as the case may be.
Article 1683
The party who intends to bring a dispute before an arbitral tribunal shall
give notice to the opposing party. The notice shall refer to the arbitration
agreement and specify the subject matter of the dispute, unless the arbitration
agreement already does so.
If more than one arbitrator is to be appointed, and if it is for the parties
to appoint them, the notice shall specify the arbitrator or arbitrators appointed
by the party who invokes the arbitration agreement; the opposing party shall
be invited, in the notice, to appoint the arbitrator or arbitrators whom it
is entitled to appoint.
If a third person has been entrusted with the appoinment of a sole arbitrator
or of arbitrators and has
not done so, he also shall be given notice in accordance with paragraph 1 and
invited to make the appointment.
The appointment of an arbitrator may not be withdrawn after notification of
the appointment.
Article 1684
If the party or third person to whom notice has been given in accordance with
Article 1683 has not, within a period of one month from the notice, appointed
the arbitrator or arbitrators whom the party or third person is entitled to
appoint, the President of the Court of First Instance shall make the nomination
at the request of either party.
If the parties agreed that there shall be a sole arbitrator and they have not
appointed him by mutual consent within a period of one month from the notice
under Article 1683, the appointment shall be made as determined in paragraph
1.
Article 1685
Where the arbitrators nominated or appointed in accordance with the foregoing
provisions are even in number, they shall appoint another arbitrator to be
chairman of the arbitral tribunal. If they do not agree and if the parties
have not provided otherwise, the President of the Court of First Instance shall
make the necessary appointment at the request of either party. The President
may be seized after the expiration of one month from the acceptance of his
function by the last arbitrator or as soon as the failure to agree is established.
Where the arbitrators appointed are uneven in number they shall appoint one
of themselves as chairman of the arbitral tribunal, unless the parties have
agreed on another method of appointment. If the arbitrators do not agree, the
appointment shall be made according to paragraph 1.
Article 1686
In the cases provided for in Articles 1684 and 1685, no recourse is possible
against the decision of the President of the Court of First Instance.
The Presidents decision does not prejudice the power of the arbitral tribunal
to rule on its own jurisdiction, or a partys right to raise a plea for lack
of jurisdiction of the arbitral tribunal.
Article 1687
If an arbitrator dies, or if he is prevented de jure or de facto from fulfilling
his function, or if he refuses to accept or to fulfil his fucntion, or if his
function is terminated by mutual agreement of the parties, he shall be replaced
in accordance with the rules governing his nomination or appointment. If, however,
the arbitrator or arbitrators are named in the arbitration agreement, the agreement
shall terminate ipso jure .
Disputes with respect to the cases provided for in paragraph 1 shall be brought
before the Court of First Instance on the application of one of the parties.
If the Court decides that there are grounds to replace the arbitrator, it shall
appoint his successor, thereby taking into account the intention of the parties,
as flowing from the arbitration agreement.
The parties may derogate from the provision of this Article.
Article 1688
Unless the parties have agreed otherwise, neither the arbitration agreement
nor the function of the arbitrators shall be terminated by the death of one
of the parties.
Article 1689
The arbitrator who has accepted his function may not resign, unless so authorized
by the Court of First Instance at his request. The Court decides after the
parties have been heard or summoned under judicial cover letter ( sous pli
judiciaire ) by the clerk of the court (greffier). No recourse is possible
against the Courts decision.
Article 1690
Arbitrators may be challenged if circumstances exist which give rise to justifiable
doubts regarding their impartiality or independence.
A party may only challenge an arbitrator on the basis of a reason of which
it has become aware after his appointment.
Article 1691
The challenge shall be notified to the arbitrators and, as the case may be,
also to the third person who has appointed the challenged arbitrator on the
basis of the arbitration agreement, as soon as the challenging party becomes
aware of the ground of the challenge. The arbitrators shall thereupon stay
further proceedings.
If the challenged arbitrator has not resigned within a period of ten days after
notice of the challenge has been given to him, the arbitral tribunal shall
so notify the challenging party. The challenging party shall, on pain of being
barred, summon the arbitrator and the other parties before the Court of First
Instance, within a period of ten days after receiving such notification, failing
which the proceedings before the arbitrators shall be ipso jure resumed. An
appeal against the decision taken by the Court of First
Instance will be decided according to Articles 843 to 847 of this Code.
If the arbitrator resigns or if the challenge is accepted by the judge, the
arbitrator shall be replaced in accordance with the rules governing his nomination
or appointment. If, however, the arbitrator has been named in the arbitration
agreement, the agreement shall terminate ipso jure . The parties may derogate
from the provisions of this paragraph.
Article 1692
The parties may in the arbitration agreement exclude certain categories of
persons from being arbitrators.
If such an exclusion has been disregarded with respect to the composition of
the arbitral tribunal, the irregularity shall be invoked in accordance with
the provisions of Article 1691.
Article 1693
Without prejudice to the provisions of Artcle 1694, the parties determine the
rules of the arbitration procedure and the place of arbitration. If parties
do not indicate their wish in this regard within the time limit fixed by the
arbitral tribunal, the arbitrators shall determine such rules and the place
of arbitration.
In case the place of arbitration has not been determined by the parties or
the arbitrators, the place where the arbitral award is rendered, as stated
in the award, shall be deemed to be the place of arbitration.
Unless the parties have agreed otherwise and after consultation with the parties,
the arbitral tribunal may conduct hearings and meetings at any other location
which it considers appropriate.
The chairman of the arbitral tribunal shall be in full charge of the hearings
and shall conduct the oral proceedings.
Article 1694
The arbitral tribunal shall provide each party an opportunity to substantiate
its claims and to present its case.
The arbitral tribunal shall make an award after oral proceedings. The parties
may validly be summoned by registered letter, unless they have agreed upon
any other method of summons. The parties may appear in person.
The procedure shall be in writing where the parties have so provided or insofar
as they have waived oral proceedings.
Each party shall have the right to be represented by a lawyer or by a representative,
in possession of a special power of attorney in writing, approved by the arbitral
tribunal. Each party may be assisted by a lawyer or any person of his choice,
approved by the arbitral tribunal. Parties may not be represented or assisted
by a commercial agent ( agent daffaires: is in Belgium a person who is engaged
in representation in litgious matters without being member of the bar) .
Article 1695
If, without legitimate cause, a party properly summoned does not appear or
does not present his case within the period fixed, the arbitral tribunal may,
unless the other party requests an adjournment, instruct the matter and make
an award.
Article 1696
Without prejudice to the provision of Article 1679.2, the arbitral tribunal
may, at the request of a party, order provisional and conservatory measures,
with the exception of an attachment order.
Unless the parties have agreed otherwise, the arbitral tribunal shall have
discretion to decide on the admissibility of the evidence and on its conclusive
force.
The arbitral tribunal may order a hearing of witnesses, an appraisal by experts,
a visit to the site, the appearance of parties in person; the arbitral tribunal
may accept an oath as being decisive or may request a supplementary oath. It
may also order the production of documents held by a party according to the
conditions provided in Article 877 of this Code.
When the arbitral tribunal has ordered a hearing, and the witnesses do not
appear voluntarily or refuse to take the oath or to testify, the arbitral tribunal
will authorize the parties, or one of them, to request the Court of First Instance,
within a fixed period, to appoint a juge-commissaire , to preside over the
investigation. This hearing will take place according to the formalities for
civil matters. The time limits for the arbitration procedure are ipso jure
suspended until the hearing of witnesses is completed.
The arbitral tribunal may not order the verification of signatures nor decide
on an objection relating to the production of documents or upon the alleged
falseness of documents. In such case, it will leave it to the parties to bring
the matter before the Court of First Instance within a fixed period of time.
The time limits for the arbitration procedure are ipso jure suspended until
the day the arbitral tribunal receives notification by the most diligent party
of the final decision concerning the incident.
Article 1696
Any interested third party may request the arbitral tribunal authorization
in order to intervene in the proceedings. This request is addressed in writing
to the arbitral tribunal, which shall communicate it to the parties.
A party may call upon a third party in order to intervene.
In any event, in order to be admitted, the intervention requires an arbitration
agreement between the third party and the parties involved in the arbitration.
Moreover, it is conditional on the assent of the arbitral tribunal, which decides
unanimously.
Article 1697
The arbitral tribunal may decide on its own jurisdiction and for this purpose,
may examine the validity of the arbitration agreement.
A finding that the contract is invalid shall not entail ipso jure nullity of
the arbitration agreement contained in it.
The arbitral tribunals decision that it has jurisdiction may only be contested
together with the award on the main issue and by the same procedure before
the Court of First Instance. The Court of First Instance may at the request
of one of the parties decide as to wether the decision through which the arbitral
tribunal holds that it has no jurisdiction is well founded.
The appointment of an arbitrator by a party shall not deprive that party of
its rights to challenge the jurisdiction of the arbitral tribunal.
Article 1698
The parties may, until the time the first arbitrator has accepted his function,
determine the time limit within which the award is to be made or provide for
a method according to which the time limit is to be determined.
If the parties have neither prescribed such time limit nor the manner in which
such time limit is determined, the Court of First Instance may at the request
of either party fix a time limit for the arbitral tribunal, if the arbitral
tribunal delays the rendering of the award and if a period of six months has
elapsed from the date on which all the arbitrators accepted their function
with respect to the disputed matter. No recourse is possible against the decision
of the Court of First Instance.
The function of the arbitrators shall terminate if the arbitral award is not
rendered within the given time limit, unless such time limit is extended by
agreement between the parties.
If arbitrators are named in the arbitration agreement and the award is not
made within the time limit, the arbitration agreement shall terminate ipso
jure , unless the parties have agreed otherwise.
Article 1699
The arbitral tribunal takes a final decision or renders interlocutory decisions,
through one or more awards.
Article 1700
Unless the parties have agreed otherwise, the arbitrators shall decide the
dispute in accordance with the rules of law.
When a legal person of public law is a party to the arbitration agreement,
the arbitrators shall always decide in accordance with the rules of law, without
prejudice to special laws.
Article 1701
The award shall be made after a deliberation in which all the arbitrators shall
take part. The award shall be made by an absolute majority of votes, unless
the parties have agreed on another majority.
The parties may also agree that, when a majority cannot be reached, the chairman
of the arbitral tribunal shall have a casting vote.
Except where otherwise stipulated, if the arbitrators are to award a sum of
money, and a majority cannot be reached for a particular sum to be awarded,
the votes for the highest sum shall be counted as votes for the next highest
sum until a majority is reached.
The award shall be made in writing and signed by the arbitrators. If one or
more of the arbitrators are unable or unwilling to sign, the fact shall be
recorded in the award. However, the award shall bear a number of signatures
which is at least equal to a majority of the arbitrators.
An award shall, in addition to the dispositive part, contain the following
elements:
the names and permanent addresses of the arbitrators;
the names and permanent addresses of the parties;
the subject matter of the dispute;
the date on which the award is made;
the place of arbitration and the place where the award is made.
The reasons for an award shall be stated.
Article 1702
The chairman of the arbitral tribunal shall give notice of the award to each
party by sending it a copy thereof, signed in accordance with paragraph 4 of
Article 1701.
The chairman of the arbitral tribunal shall deposit the original of the award
with the registry of the Court of First Instance; he shall notify the parties
of the deposit.
The arbitrators function ends when the award terminating the litigation has
been notified and deposited according to the preceding provisions.
Article 1702 bis
Within 30 days of the notification of the award, unless the parties have agreed
upon another time limit :
one of the parties may, after having advised the other party, request the arbitral
tribunal to correct in the text of the award any clerical, computational or
typographical error, or any error of similar nature;
one of the parties may, in case the parties have agreed so, and after having
advised the other party, request the arbitral tribunal to interpret a particular
point or a specific part of the award. If the arbitral tribunal considers the
request founded, it shall make the correction or provide the interpretation
within 30 days following the receipt of the request. The interpretation shall
constitute a part of the award.
The arbitral tribunal may, on its own motion, correct any error referred to
in the first paragraph, a) within 30 days of the date of the award.
If necessary, the arbitral tribunal may extend the time-limit of which it disposes
in order to correct the award or interpret it in accordance with the first
paragraph.
The provisions of Article 1701 shall apply to the correction and interpretation
of the award.
If it is no longer possible to bring together the same arbitrators, the request
for interpretation or correction of the award must be submitted to the Court
of First Instance, whose president has jurisdiction in order to give an enforceable
title in accordance with the provisions on jurisdiction laid down in Articles
1717 and 1719, second paragraph.
Article 1703
Unless the award is contrary to public order (ordre public) or the dispute
was not capable of settlement by arbitration, an arbitral award has the authority
of res judicata when it has been notified in accordance with paragraph 1 of
Article 1702 and may no longer be contested before the arbitrators.
An appeal against an arbitral award is only possible if the parties have provided
this possibility in the arbitration agreement. Unless the parties have agreed
otherwise, the time limit to make an appeal is one month following the notification
of the award.
Article 1704
An arbitral award may only be contested before the Court of First Instance
by way of an application to set it aside and may be set aside only in the cases
mentioned in this Article.
An arbitral award may be set aside:
if it is contrary to public order (ordre public) ;
if the dispute was not capable of settlement by arbitration;
if there is no valid arbitration agreement;
if the arbitral tribunal has exceeded its jurisdiction or its powers;
if the arbitral tribunal has omitted to make an award in respect of one or
more points of the dispute and if the points omitted cannot be separated from
the points in respect of which the award has been made;
if the award was made by an arbitral tribunal that was irregularly constituted;
if the parties have not been given an opportunity to present their case and
arguments, or if any other obligatory rule of the arbitral procedure has been
disregarderd, insofar as such disregard has had an influence on the arbitral
award;
if the formalities prescribed in paragraph 4 of Article 1701 have not been
fulfilled;
if the reasons for the award have not been stated;
if the award contains conflicting provisions.
An award may also be set aside:
if it was obtained by fraud;
if it is based on evidence that has been declared false by a judicial decision
having the force of res judicata or on the basis of evidence recognised as
false;
if, after it was made, a document or other piece of evidence is discovered
which would have had a decisive influence on the award and was withheld through
the act of the opposing party.
The cases mentioned in sub-paragraph (c), (d) or (f) of paragraph 2 shall no
more constitute a ground for setting aside an award, if the party availing
itself of it was aware of such case during the arbitration proceedings and
did not invoke it at that time.
Grounds for the challenge and exclusion of arbitrators provided for under Articles
1690 and 1692 shall not constitute grounds for setting aside within the meaning
of paragraph 2 (f) of this Article, even when they become known only after
the award is made.
Article 1705
If there are grounds for setting aside any part of an award, that part shall
be set aside only if it can be separated from the other parts of the award.
Article 1706
The grounds for setting aside an arbitral award shall, on pain of being barred,
be put forward by the party concerned in one and the same proceedings, except
however, in the case of a ground for setting aside provided for in paragraph
3 of Article 1704 where the ground is not known until later.
An application to set aside an award shall be admissible only if the award
may no longer be contested before arbitrators.
Article 1707
An application to set aside an award, based on one of the grounds provided
for in paragraph 2 (c) to (j), of Article 1704 shall, on pain of being barred,
be made within a period of three months from the date on which the award has
been notified to the parties. However, that period shall begin to run only
from the date on which the award can no longer be contested before arbitrators.
The defendant in an application to set aside an award may apply, in the same
proceedings, for the award to be set aside, even if the period laid down in
paragraph 1 has expired.
An application to set aside an award, based on one of the grounds provided
for in paragraph 3 of Article 1704, shall be made within a period of three
months from either the date of the discovery of the fraud, document or either
piece of evidence, or the date on which the evidence was declared false or
recognized as false, provided that a period of five years from the date on
which the award was notified in accordance with paragraph 1 of Article 1702
has not expired.
The judicial authority seized of an application to set aside an award shall
examine proprio motu whether the award is contrary to public policy ( ordre
public) and whether the dispute was capable of settlement by arbitration.
Article 1708
If the arbitral tribunal has omitted to decide on one or more points of the
dispute that can be separated from the points on which it has made an award,
this tribunal may, if so requested by a party, complete its award even if the
time limit provided for in Article 1698 has expired, unless the other party
contests that points have been omitted or that the omitted points can be separated
from the points on which an award has been made.
In such case, the dispute is brought before the Court of First Instance by
the most diligent party. The court refers the parties back to the arbitral
tribunal in order to complete the award, if it decides that the omitted points
can be separated from the points on which the arbitral tribunal has made an
award.
Article 1709
The arbitrators may order provisional execution of their awards notwithstanding
appeal and without prejudice to the rules of payment under reserve ( cantonnement
). They may also subject the provisional execution to the establishment of
a guarantee according to the rules of this Code.
Article 1709 bis
The arbitrators may order a party to pay a penalty sum. The provisions of Articles
1385 bis to octies are applicable mutatis mutandis .
Article 1710
The arbitral award may be enforced only after it has been declared enforceable
by the President of the Court of First Instance, at the request of the interested
party. The party against whom enforcement is sought, cannot claim to present
its views at this stage of the procedure.
The President may only declare the award enforceable, if the award can no longer
be contested before the arbitrators or if the arbitrators have granted provisional
enforcement notwithstanding appeal. The Presidents decision is enforceable
notwithstanding any recourse without prejudice to the application of
Article 1714
The President shall refuse the request if the award or its enforcement is contrary
to public policy ( ordre public) or if the dispute was not capable of settlement
by arbitration.
Within five days after it is rendered, the decision is notified, under judicial
cover letter ( sous pli judiciaire ) by the clerk of the court ( greffier )
to the petitioner.
Article 1711
If the request is denied, the petitioner may file an appeal with the Court
of Appeal within a period of one month from the notification of the decision.
Such appeal is filed by notification to the party against whom enforcement
is sought by means of a summons served by a bailiff ( par exploit dhuissier).
If this party seeks to obtain the annulment of the award without having previously
made an application therefor, this party must on pain of being barred, file
this application before the Court of First Instance, within a period of one
month from the notification of the appeals motion. In such case, the Court
of Appeal stays its proceedings until a final judgement has been rendered concerning
the application to set aside the award.
Article 1712
The decision granting enforcement must be notified by the party who has applied
for it to the other party. Within a period of one month from the notification,
an opposition against the decision may be filed with the Court of First Instance.
The party who filed the opposition and who seeks to obtain the setting aside
of the award without having previously made an application therefor shall,
on pain of being barred, make his request in the same proceedings and within
the period prescribed in paragraph 1. The party who, while not filing an opposition
provided for in paragraph 1, seeks to obtain the setting aside of the award
shall, on pain of being barred, file its application for setting aside within
the period prescribed in paragraph 1.
Article 1713
In the cases provided for in Articles 1711 and 1712, the time limit prescribed
in Article 1707, paragraph 1, does not apply to an application for setting
aside which is based on the lack of a valid arbitration agreement.
Without prejudice to the provisions of paragraph 3 of Article 1707, if a party
has only after the decision granting enforcement was notified to it, becomes
aware of one of the grounds for setting aside provided for in paragraph 3 of
Article 1704, that party may apply for the setting aside of the award on this
ground, even if the time limit prescribed in Articles 1711 and 1712 have already
expired.
Article 1714
The judge with whom an opposition is filed against a decision granting the
enforcement of an arbitral award or with whom an application for setting aside
of an arbitral award is pending, may, at the request of one of the parties,
order that the enforcement of the award be stayed, or that enforcement will
depend on the constitution of a guarantee.
A decision granting enforcement remains without effect to the extent that the
arbitral award has been set aside.
Article 1715
Where, before an arbitral tribunal, a settlement is reached with respect to
a dispute pending before that tribunal, such settlement may be recorded in
a document established by the arbitral tribunal and signed by the arbitrators
as well as by the parties. The provisions of paragraph 2 of Article 1702 shall
apply to this document; at the request of the interested party, the President
of the Court of First Instance may declare the document which records the settlement
enforceable.
The President of the Court of First Instance rejects the application if the
settlement agreement or its enforcement is contrary to public order ( ordre
public ) or if the dispute was not capable of settlement by arbitration.
Within five days following the decision, the clerk of the court (greffier)
notifies the petitioner thereof under judicial cover letter ( sous pli judiciaire
).
Article 1716
The decision granting enforcement to the document which records the settlement
must be notified by the petitioner to the other party. Within one month after
the notification of the decision, an opposition against the decision may be
filed with the Court of First Instance.
If the application is denied, the petitioner may file an appeal according to
Article 1711.
The decision granting enforcement to the document which records the settlement
remains without effect insofar as the settlement is annulled.
Article 1717
Except for the provisions of paragraph 2 of Article 1719, the court that has
jurisdiction to apply part VI of this Code is the court designated in the arbitration
agreement or in a later agreement, concluded before the place of arbitration
is determined.
If the parties have reached no agreement, the court of the place of arbitration
has jurisdiction. If such place of arbitration has not yet been determined,
the court has jurisdiction in whose district the court is situated that would
have had jurisdiction if the dispute had not been sumitted to arbitration.
The parties may, by an explicit declaration in the arbitration agreement or
by a later agreement, exclude any application for the setting aside of an arbitral
award, in case none of them is a physical person of Belgian nationality or
a physical person having his normal residence in Belgium or a legal person
having its main seat or a branch office in Belgium.
Article 1718
If the appeal against a judgement of the Court of First Instance or of the
Court of Commerce has been submitted to arbitration, the arbitral award can
only be enforced after the Court of Appeal has granted enforcement and after
the party against whom execution is sought has been summoned.
If this person seeks to obtain the setting aside of the award without having
previously introduced an application therefor, he must file his application
during the same proceedings, on pain of being barred, without prejudice to
the provisions of Article 1713.
No opposition is possible against the decision of the Court of Appeal.
Article 1719
The President of the Court of First Instance decides, upon request, on the
application for enforcement of arbitral awards rendered abroad on the basis
of an arbitration agreement.
The application is brought before the President of the Court of First Instance
in whose district the party against whom enforcement is sought has its domicile,
and in the absence of a domicile, its residence. If the party has neither domicile
nor residence in Belgium, the application will be brought before the President
of the Court of First Instance of the place where the award must be enforced.
The petitioner elects domicile in the Courts district.
He joins to the request the original of the award as well as the arbitration
agreement or copies thereof which fulfill the necessary conditions as to their
authenticity.
The President of the Court verifies the application and may, for this purpose,
summon the petitioner and the party against whom enforcement is sought to his
chambers ( en chambre du conseil ). The summoning is served to the parties
under judicial cover letter (sous pli juduciaire ) by the clerk of the court
(greffier).
Article 1720
Within five days following its pronouncement, the decision of the President
of the Court of First Instance is notified, under judicial cover letter ( sous
pli judiciaire ) by the clerk of the court ( greffier) to the petitioner.
Article 1721
If the application is denied, the petitioner may make an appeal before the
Court of Appeal within a period of one month from notification of the decision.
This appeal is filed by service of a bailiff to the party against whom enforcement
is sought containing a summons to appear before the Court.
Article 1722
The decision granting enforcement must be served by the party who has applied
for it to the other party. Within one month after its notification, an opposition
against this decision may be filed with the Court of First Instance.
Article 1723
Except when a treaty between Belgium and the country where the award has been
rendered is applicable, the President refuses to grant enforcement :
If the arbitral award can still be contested before arbitrators and if the
arbitrators have not ordered provisional enforcement notwithstanding appeal;
If the award or its enforcement is contrary to public policy ( ordre public)
, or if the dispute is not capable of settlement by arbitration;
If it is established that there exists a ground for setting aside as provided
in Article 1704.
The challenge shall be notified to the arbitrators and, as the case may be,
also to the third person who has appointed the challenged arbitrator on the
basis of the arbitration agreement, as soon as the challenging party becomes
aware of the ground of the challenge. The arbitrators shall thereupon stay
further proceedings.
If the challenged arbitrator has not resigned within a period of ten days after
notice of the challenge has been given to him, the arbitral tribunal shall
so notify the challenging party. The challenging party shall, on pain of being
barred, summon the arbitrator and the other parties before the Court of First
Instance, within a period of ten days after receiving such notification, failing
which the proceedings before the arbitrators shall be ipso jure resumed. An
appeal against the decision taken by the Court of First Instance will be decided
according to Articles 843 to 847 of this Code.
If the arbitrator resigns or if the challenge is accepted by the judge, the
arbitrator shall be replaced in accordance with the rules governing his nomination
or appointment. If, however, the arbitrator has been named in the arbitration
agreement, the agreement shall terminate ipso jure . The parties may derogate
from the provisions of this paragraph.
Article 1692
The parties may in the arbitration agreement exclude certain categories of
persons from being arbitrators.
If such an exclusion has been disregarded with respect to the composition of
the arbitral tribunal, the irregularity shall be invoked in accordance with
the provisions of Article 1691.
Article 1693
Without prejudice to the provisions of Artcle 1694, the parties determine the
rules of the arbitration procedure and the place of arbitration. If parties
do not indicate their wish in this regard within the time limit fixed by the
arbitral tribunal, the arbitrators shall determine such rules and the place
of arbitration. In case the place of arbitration has not been determined by
the parties or the arbitrators, the place where the arbitral award is rendered,
as stated in the award, shall be deemed to be the place of arbitration.
Unless the parties have agreed otherwise and after consultation with the parties,
the arbitral tribunal may conduct hearings and meetings at any other location
which it considers appropriate.
The chairman of the arbitral tribunal shall be in full charge of the hearings
and shall conduct the oral proceedings.
Article 1694
The arbitral tribunal shall provide each party an opportunity to substantiate
its claims and to present its case.
The arbitral tribunal shall make an award after oral proceedings. The parties
may validly be summoned by registered letter, unless they have agreed upon
any other method of summons. The parties may appear in person.
The procedure shall be in writing where the parties have so provided or insofar
as they have waived oral proceedings.
Each party shall have the right to be represented by a lawyer or by a representative,
in possession of a special power of attorney in writing, approved by the arbitral
tribunal. Each party may be assisted by a lawyer or any person of his choice,
approved by the arbitral tribunal. Parties may not be represented or assisted
by a commercial agent ( agent daffaires: is in Belgium a person who is engaged
in representation in litgious matters without being member of the bar) .
Article 1695
If, without legitimate cause, a party properly summoned does not appear or
does not present his case within the period fixed, the arbitral tribunal may,
unless the other party requests an adjournment, instruct the matter and make
an award.
Article 1696
Without prejudice to the provision of Article 1679.2, the arbitral tribunal
may, at the request of a party, order provisional and conservatory measures,
with the exception of an attachment order.
Unless the parties have agreed otherwise, the arbitral tribunal shall have
discretion to decide on the admissibility of the evidence and on its conclusive
force.
The arbitral tribunal may order a hearing of witnesses, an appraisal by experts,
a visit to the site, the appearance of parties in person; the arbitral tribunal
may accept an oath as being decisive or may request a supplementary oath. It
may also order the production of documents held by a party according to the
conditions provided in Article 877 of this Code.
When the arbitral tribunal has ordered a hearing, and the witnesses do not
appear voluntarily or refuse to take the oath or to testify, the arbitral tribunal
will authorize the parties, or one of them, to request the Court of First Instance,
within a fixed period, to appoint a juge-commissaire , to preside over the
investigation. This hearing will take place according to the formalities for
civil matters. The time limits for the arbitration procedure are ipso jure
suspended until the hearing of witnesses is completed.
The arbitral tribunal may not order the verification of signatures nor decide
on an objection relating to the production of documents or upon the alleged
falseness of documents. In such case, it will leave it to the parties to bring
the matter before the Court of First Instance within a fixed period of time.
The time limits for the arbitration procedure are ipso jure suspended until
the day the arbitral tribunal receives notification by the most diligent party
of the final decision concerning the incident.
Article 1696 bis
Any interested third party may request the arbitral tribunal authorization
in order to intervene in the proceedings. This request is addressed in writing
to the arbitral tribunal, which shall communicate it to the parties.
A party may call upon a third party in order to intervene.
In any event, in order to be admitted, the intervention requires an arbitration
agreement between the third party and the parties involved in the arbitration.
Moreover, it is conditional on the assent of the arbitral tribunal, which decides
unanimously.
Article 1697
The arbitral tribunal may decide on its own jurisdiction and for this purpose,
may examine the validity of the arbitration agreement.
A finding that the contract is invalid shall not entail ipso jure nullity of
the arbitration agreement contained in it.
The arbitral tribunals decision that it has jurisdiction may only be contested
together with the award on the main issue and by the same procedure before
the Court of First Instance. The Court of First Instance may at the request
of one of the parties decide as to wether the decision through which the arbitral
tribunal holds that it has no jurisdiction is well founded.
The appointment of an arbitrator by a party shall not deprive that party of
its rights to challenge the jurisdiction of the arbitral tribunal.
Article 1698
The parties may, until the time the first arbitrator has accepted his function,
determine the time limit within which the award is to be made or provide for
a method according to which the time limit is to be determined.
If the parties have neither prescribed such time limit nor the manner in which
such time limit is determined, the Court of First Instance may at the request
of either party fix a time limit for the arbitral tribunal, if the arbitral
tribunal delays the rendering of the award and if a period of six months has
elapsed from the date on which all the arbitrators accepted their function
with respect to the disputed matter. No recourse is possible against the decision
of the Court of First Instance.
The function of the arbitrators shall terminate if the arbitral award is not
rendered within the given time limit, unless such time limit is extended by
agreement between the parties.
If arbitrators are named in the arbitration agreement and the award is not
made within the time limit, the arbitration agreement shall terminate ipso
jure , unless the parties have agreed otherwise.
Article 1699
The arbitral tribunal takes a final decision or renders interlocutory decisions,
through one or more awards.
Article 1700
Unless the parties have agreed otherwise, the arbitrators shall decide the
dispute in accordance with the rules of law.
When a legal person of public law is a party to the arbitration agreement,
the arbitrators shall always decide in accordance with the rules of law, without
prejudice to special laws.
Article 1701
The award shall be made after a deliberation in which all the arbitrators shall
take part. The award shall be made by an absolute majority of votes, unless
the parties have agreed on another majority.
The parties may also agree that, when a majority cannot be reached, the chairman
of the arbitral tribunal shall have a casting vote.
Except where otherwise stipulated, if the arbitrators are to award a sum of
money, and a majority cannot be reached for a particular sum to be awarded,
the votes for the highest sum shall be counted as votes for the next highest
sum until a majority is reached.
The award shall be made in writing and signed by the arbitrators. If one or
more of the arbitrators are unable or unwilling to sign, the fact shall be
recorded in the award. However, the award shall bear a number of signatures
which is at least equal to a majority of the arbitrators.
An award shall, in addition to the dispositive part, contain the following
elements:
the names and permanent addresses of the arbitrators;
the names and permanent addresses of the parties;
the subject matter of the dispute;
the date on which the award is made;
the place of arbitration and the place where the award is made.
The reasons for an award shall be stated.
Article 1702
The chairman of the arbitral tribunal shall give notice of the award to each
party by sending it a copy thereof, signed in accordance with paragraph 4 of
Article 1701.
The chairman of the arbitral tribunal shall deposit the original of the award
with the registry of the Court of First Instance; he shall notify the parties
of the deposit.
The arbitrators function ends when the award terminating the litigation has
been notified and deposited according to the preceding provisions.
Article 1702 bis
Within 30 days of the notification of the award, unless the parties have agreed
upon another time limit :
one of the parties may, after having advised the other party, request the arbitral
tribunal to correct in the text of the award any clerical, computational or
typographical error, or any error of similar nature;
one of the parties may, in case the parties have agreed so, and after having
advised the other party, request the arbitral tribunal to interpret a particular
point or a specific part of the award. If the arbitral tribunal considers the
request founded, it shall make the correction or provide the interpretation
within 30 days following the receipt of the request. The interpretation shall
constitute a part of the award.
The arbitral tribunal may, on its own motion, correct any error referred to
in the first paragraph, a) within 30 days of the date of the award.
If necessary, the arbitral tribunal may extend the time-limit of which it disposes
in order to correct the award or interpret it in accordance with the first
paragraph.
The provisions of Article 1701 shall apply to the correction and interpretation
of the award.
If it is no longer possible to bring together the same arbitrators, the request
for interpretation or correction of the award must be submitted to the Court
of First Instance, whose president has jurisdiction in order to give an enforceable
title in accordance with the provisions on jurisdiction laid down in Articles
1717 and 1719, second paragraph.
Article 1703
Unless the award is contrary to public order (ordre public) or the dispute
was not capable of settlement by arbitration, an arbitral award has the authority
of res judicata when it has been notified in accordance with paragraph 1 of
Article 1702 and may no longer be contested before the arbitrators.
An appeal against an arbitral award is only possible if the parties have provided
this possibility in the arbitration agreement. Unless the parties have agreed
otherwise, the time limit to make an appeal is one month following the notification
of the award.
Article 1704
An arbitral award may only be contested before the Court of First Instance
by way of an application to set it aside and may be set aside only in the cases
mentioned in this Article.
An arbitral award may be set aside:
if it is contrary to public order (ordre public) ;
if the dispute was not capable of settlement by arbitration;
if there is no valid arbitration agreement;
if the arbitral tribunal has exceeded its jurisdiction or its powers;
if the arbitral tribunal has omitted to make an award in respect of one or
more points of the dispute and if the points omitted cannot be separated from
the points in respect of which the award has been made;
if the award was made by an arbitral tribunal that was irregularly constituted;
if the parties have not been given an opportunity to present their case and
arguments, or if any other obligatory rule of the arbitral procedure has been
disregarderd, insofar as such disregard has had an influence on the arbitral
award;
if the formalities prescribed in paragraph 4 of Article 1701 have not been
fulfilled;
if the reasons for the award have not been stated;
if the award contains conflicting provisions.
An award may also be set aside:
if it was obtained by fraud;
if it is based on evidence that has been declared false by a judicial decision
having the force of res judicata or on the basis of evidence recognised as
false;
if, after it was made, a document or other piece of evidence is discovered
which would have had a decisive influence on the award and was withheld through
the act of the opposing party.
The cases mentioned in sub-paragraph (c), (d) or (f) of paragraph 2 shall no
more constitute a ground for setting aside an award, if the party availing
itself of it was aware of such case during the arbitration proceedings and
did not invoke it at that time.
Grounds for the challenge and exclusion of arbitrators provided for under Articles
1690 and 1692 shall not constitute grounds for setting aside within the meaning
of paragraph 2 (f) of this Article, even when they become known only after
the award is made.
Article 1705
If there are grounds for setting aside any part of an award, that part shall
be set aside only if it can be separated from the other parts of the award.
Article 1706
The grounds for setting aside an arbitral award shall, on pain of being barred,
be put forward by the party concerned in one and the same proceedings, except
however, in the case of a ground for setting aside provided for in paragraph
3 of Article 1704 where the ground is not known until later.
An application to set aside an award shall be admissible only if the award
may no longer be contested before arbitrators.
Article 1707
An application to set aside an award, based on one of the grounds provided
for in paragraph 2 (c) to (j), of Article 1704 shall, on pain of being barred,
be made within a period of three months from the date on which the award has
been notified to the parties. However, that period shall begin to run only
from the date on which the award can no longer be contested before arbitrators.
The defendant in an application to set aside an award may apply, in the same
proceedings, for the award to be set aside, even if the period laid down in
paragraph 1 has expired.
An application to set aside an award, based on one of the grounds provided
for in paragraph 3 of Article 1704, shall be made within a period of three
months from either the date of the discovery of the fraud, document or either
piece of evidence, or the date on which the evidence was declared false or
recognized as false, provided that a period of five years from the date on
which the award was notified in accordance with paragraph 1 of Article 1702
has not expired.
The judicial authority seized of an application to set aside an award shall
examine proprio motu whether the award is contrary to public policy ( ordre
public) and whether the dispute was capable of settlement by arbitration.
Article 1708
If the arbitral tribunal has omitted to decide on one or more points of the
dispute that can be separated from the points on which it has made an award,
this tribunal may, if so requested by a party, complete its award even if the
time limit provided for in Article 1698 has expired, unless the other party
contests that points have been omitted or that the omitted points can be separated
from the points on which an award has been made.
In such case, the dispute is brought before the Court of First Instance by
the most diligent party. The court refers the parties back to the arbitral
tribunal in order to complete the award, if it decides that the omitted points
can be separated from the points on which the arbitral tribunal has made an
award.
Article 1709
The arbitrators may order provisional execution of their awards notwithstanding
appeal and without prejudice to the rules of payment under reserve ( cantonnement
). They may also subject the provisional execution to the establishment of
a guarantee according to the rules of this Code.
Article 1709 bis
The arbitrators may order a party to pay a penalty sum. The provisions of Articles
1385 bis to octies are applicable mutatis mutandis .
Article 1710
The arbitral award may be enforced only after it has been declared enforceable
by the President of the Court of First Instance, at the request of the interested
party. The party against whom enforcement is sought, cannot claim to present
its views at this stage of the procedure.
The President may only declare the award enforceable, if the award can no longer
be contested before the arbitrators or if the arbitrators have granted provisional
enforcement notwithstanding appeal. The Presidents decision is enforceable
notwithstanding any recourse without prejudice to the application of
Article 1714.
The President shall refuse the request if the award or its enforcement is contrary
to public policy ( ordre public) or if the dispute was not capable of settlement
by arbitration.
Within five days after it is rendered, the decision is notified, under judicial
cover letter ( sous pli judiciaire ) by the clerk of the court ( greffier )
to the petitioner.
Article 1711
If the request is denied, the petitioner may file an appeal with the Court
of Appeal within a period of one month from the notification of the decision.
Such appeal is filed by notification to the party against whom enforcement
is sought by means of a summons served by a bailiff ( par exploit dhuissier).
If this party seeks to obtain the annulment of the award without having previously
made an application therefor, this party must on pain of being barred, file
this application before the Court of First Instance, within a period of one
month from the notification of the appeals motion. In such case, the Court
of Appeal stays its proceedings until a final judgement has been rendered concerning
the application to set aside the award.
Article 1712
The decision granting enforcement must be notified by the party who has applied
for it to the other party. Within a period of one month from the notification,
an opposition against the decision may be filed with the Court of First Instance.
The party who filed the opposition and who seeks to obtain the setting aside
of the award without having previously made an application therefor shall,
on pain of being barred, make his request in the same proceedings and within
the period prescribed in paragraph 1. The party who, while not filing an opposition
provided for in paragraph 1, seeks to obtain the setting aside of the award
shall, on pain of being barred, file its application for setting aside within
the period prescribed in paragraph 1.
Article 1713
In the cases provided for in Articles 1711 and 1712, the time limit prescribed
in Article 1707, paragraph 1, does not apply to an application for setting
aside which is based on the lack of a valid arbitration agreement.
Without prejudice to the provisions of paragraph 3 of Article 1707, if a party
has only after the decision granting enforcement was notified to it, becomes
aware of one of the grounds for setting aside provided for in paragraph 3 of
Article 1704, that party may apply for the setting aside of the award on this
ground, even if the time limit prescribed in Articles 1711 and 1712 have already
expired.
Article 1714
The judge with whom an opposition is filed against a decision granting the
enforcement of an arbitral award or with whom an application for setting aside
of an arbitral award is pending, may, at the request of one of the parties,
order that the enforcement of the award be stayed, or that enforcement will
depend on the constitution of a guarantee.
A decision granting enforcement remains without effect to the extent that the
arbitral award has been set aside.
Article 1715
Where, before an arbitral tribunal, a settlement is reached with respect to
a dispute pending before that tribunal, such settlement may be recorded in
a document established by the arbitral tribunal and signed by the arbitrators
as well as by the parties. The provisions of paragraph 2 of Article 1702 shall
apply to this document; at the request of the interested party, the President
of the Court of First Instance may declare the document which records the settlement
enforceable.
The President of the Court of First Instance rejects the application if the
settlement agreement or its enforcement is contrary to public order ( ordre
public ) or if the dispute was not capable of settlement by arbitration.
Within five days following the decision, the clerk of the court (greffier)
notifies the petitioner thereof under judicial cover letter ( sous pli judiciaire
).
Article 1716
The decision granting enforcement to the document which records the settlement
must be notified by the petitioner to the other party. Within one month after
the notification of the decision, an opposition against the decision may be
filed with the Court of First Instance.
If the application is denied, the petitioner may file an appeal according to
Article 1711.
The decision granting enforcement to the document which records the settlement
remains without effect insofar as the settlement is annulled.
Article 1717
Except for the provisions of paragraph 2 of Article 1719, the court that has
jurisdiction to apply part VI of this Code is the court designated in the arbitration
agreement or in a later agreement, concluded before the place of arbitration
is determined.
If the parties have reached no agreement, the court of the place of arbitration
has jurisdiction. If such place of arbitration has not yet been determined,
the court has jurisdiction in whose district the court is situated that would
have had jurisdiction if the dispute had not been sumitted to arbitration.
(deleted)
The parties may, by an explicit declaration in the arbitration agreement or
by a later agreement, exclude any application for the setting aside of an arbitral
award, in case none of them is a physical person of Belgian nationality or
a physical person having his normal residence in Belgium or a legal person
having its main seat or a branch office in Belgium.
Article 1718
If the appeal against a judgement of the Court of First Instance or of the
Court of Commerce has been submitted to arbitration, the arbitral award can
only be enforced after the Court of Appeal has granted enforcement and after
the party against whom execution is sought has been summoned.
If this person seeks to obtain the setting aside of the award without having
previously introduced an application therefor, he must file his application
during the same proceedings, on pain of being barred, without prejudice to
the provisions of Article 1713.
No opposition is possible against the decision of the Court of Appeal.
Article 1719
The President of the Court of First Instance decides, upon request, on the
application for enforcement of arbitral awards rendered abroad on the basis
of an arbitration agreement.
The application is brought before the President of the Court of First Instance
in whose district the party against whom enforcement is sought has its domicile,
and in the absence of a domicile, its residence. If the party has neither domicile
nor residence in Belgium, the application will be brought before the President
of the Court of First Instance of the place where the award must be enforced.
The petitioner elects domicile in the Courts district.
He joins to the request the original of the award as well as the arbitration
agreement or copies thereof which fulfill the necessary conditions as to their
authenticity.
The President of the Court verifies the application and may, for this purpose,
summon the petitioner and the party against whom enforcement is sought to his
chambers ( en chambre du conseil ). The summoning is served to the parties
under judicial cover letter (sous pli juduciaire ) by the clerk of the court
(greffier).
Article 1720
Within five days following its pronouncement, the decision of the President
of the Court of First Instance is notified, under judicial cover letter ( sous
pli judiciaire ) by the clerk of the court ( greffier) to the petitioner.
Article 1721
If the application is denied, the petitioner may make an appeal before the
Court of Appeal within a period of one month from notification of the decision.
This appeal is filed by service of a bailiff to the party against whom enforcement
is sought containing a summons to appear before the Court.
Article 1722
The decision granting enforcement must be served by the party who has applied
for it to the other party. Within one month after its notification, an opposition
against this decision may be filed with the Court of First Instance.
Article 1723
Except when a treaty between Belgium and the country where the award has been
rendered is applicable, the President refuses to grant enforcement :
If the arbitral award can still be contested before arbitrators and if the
arbitrators have not ordered provisional enforcement notwithstanding appeal;
If the award or its enforcement is contrary to public policy ( ordre public)
, or if the dispute is not capable of settlement by arbitration;
If it is established that there exists a ground for setting aside as provided
in Article 1704.
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