Contribution of Marinus Vromans to the Consulegis Lawyers Network ‘Litigation and Arbitration Specialist Group Autumn 2016″:
Article 1682 Code of Civil Procure (“CCP”)
“§1. The Court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests, declare itself without jurisdiction, unless the arbitration agreement relating to the dispute is invalid or has ceased to exist. This objection must be raised before any other objection or defence, failing which it shall be in admission.
§2. Where an action referred to in § 1 has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made.”
The purpose of article 1682 CCP is to ensure the enforcement of arbitration agreements by Belgian courts.
Article 1682 CCP is very similar to article 8 of the UNCITRAL Model Law, which in itself is based on Article II(3) of the New York Convention of 1958. The difference is, that the Belgian courts may only decline jurisdiction and may not refer parties to arbitration.
Article 1682 is mandatory and applies regardless of any agreement between the parties to the contrary. Therefore Belgian courts will enforce valid arbitration agreements, regardless of whether the arbitration would take place in Belgium or abroad.
The “exception arbitri” should be raised by one of the parties and in any case “in limine litis” (prior to any defence on the merits of the case) and also prior to any objection to the territorial or material jurisdiction of the Belgian courts.
Invalid arbitration agreement
The formal validity of an arbitration agreement is assessed on the basis of the law of the seat, being Belgian law. Arbitration agreements are not subject to any formal requirements. However Article II of the New York Convention requires an arbitration agreement in writing. The Belgian courts can give effect to an arbitration agreement that is not in writing by applying the more favourable right provision of article VII(1) New York Convention. If they do so, the courts cannot seek to rely on the New York Convention’s other provisions.
An arbitration agreement may be held invalid if it concerns a dispute that is not capable of settlement by arbitration (“ objective arbitrability”). The CCP addresses this question in connection with the recognition and enforcement of an arbitral award. However this question can also be raised in relation to the validity of the arbitration agreement. The question of objective arbitrability is addressed by reference to the lex fori.
Suspension of arbitration proceedings?
The submission of a dispute to the common courts does not suspend the arbitration proceeding nor prevents a party from commencing arbitration proceedings. The parties cannot (mis)use Belgian court proceedings to cause delay in parallel arbitration proceedings (so called “torpedo’s”).
Questions on arbitration and litigation in Belgium?
Contact Marinus Vromans at firstname.lastname@example.org or through our web form