Draft Bill Amending Arbitration Rules

On 11 April 2013, the Belgian Government introduced a Bill amending the sixth chapter of the Judicial Code (Gerechtelijk Wetboek/Code judiciaire) relating to arbitration (the “Bill”). The Bill is largely based on the UNCITRAL Model Law (UNCITRAL Model Wet/Loi type de la CNUDCI), as amended in 2006.

The objective of the Bill is to align Belgian legislation with the more developed legislation on arbitration in other countries. The Bill incorporates most of the provisions of the UNCITRAL Model Law and reforms the existing Belgian legislation on arbitration as follows:

  • the conditions for objective arbitrability are clarified in so far as the source of litigation should concern a pecuniary interest (new Article 1676, §1, Judicial Code);
  • the double degree of jurisdiction in case of claims for the recusal of an arbitrator or a claim for annulment of an arbitral award is removed. (new Article 1680, §5, Judicial Code);
  • an arbitral agreement can be entered into verbally so that its existence does not necessarily have to be proven in writing (new Article 1681, Judicial Code);
  • the parties can agree on the procedure to challenge the arbitrators, notably by referring to the rules of an arbitral institution (new Article 1687, §1, Judicial Code);
  • the regime for provisional or conservatory measures ordered by an arbitral tribunal is detailed (new Articles 1691 to 1697, Judicial Code);
  • the principles of equal treatment of all parties and fairness must be applied during the proceedings (new Article 1699, Judicial Code);
  • the courts can assist when taking evidence (new Article 1708, Judicial Code);
  • an arbitral award can only be set aside on the basis of a limited number of grounds (new Article 1717, Judicial Code), and in certain cases, only if it is established that the omission has had an influence on the award (new Article 1717, §2, a) ii and v, Judicial Code). The same rule applies to the enforceability of an arbitral award (new Article 1721, a) ii and v, Judicial Code);
  • the claim for setting aside or declaring the arbitral award enforceable must be brought before one the five Courts of First Instance (Rechtbank van Eerste Aanleg/Tribunal de Première Instance) having its seat in the same districts of the Court of Appeals (Hof van Beroep/Cour d’Appel) (new Article 1680, §6 and §7, Judicial Code).

However, unlike other countries, the Bill also intends to retain specific aspects of the current Belgian legislation such as:

  • its wide scope of application: the Bill is, unlike the UNCITRAL Model law, not limited to international commercial arbitration but applies to all types of arbitration;
  • the absence of any distinction between international arbitration and national arbitration;
  • the distinction between the arbitral proceedings organised directly by the parties and arbitrators (ad hoc) as opposed to the arbitral procedures conducted, in full or in part, by an arbitral institution (institutional).