A. The Contracting State and the New York Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

Belgium.

2. Date of entry into force of the New York Convention

16 Nov. 1975.

(Source: Statute 5 June 1975, Belgian Official Gazette, 15 Nov. 1975.)

3. Has any reservation been made under Art. I(3) of the New York Convention regarding:

(a) reciprocity?

Yes, Belgium has declared that it will apply the New York Convention only to recognition and enforcement of awards made in the territory of another Contracting State.

(Source: Statute 5 June 1975, Belgian Official Gazette, 15 Nov. 1975.)

(b) commercial relationships?

No.

4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement is sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?

No. There is no category of awards rendered in Belgium that are not considered as domestic awards such that the New York Convention would apply to them.

B. National sources of law

5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?

(i) Arts. 1719–1721 Judicial Code organize the procedural steps for obtaining the recognition and enforcement in Belgium of foreign awards, to the extent that no bilateral or multilateral treaty is applicable with respect to the enforcement of foreign arbitral awards. The Belgian arbitration law was modified by law of 24 June 2013 and a few minor adaptations were made thereto by law of 25 Dec. 2016.

(Source: Statute of 4 July 1972, Belgian Official Gazette, 8 August 1972, 8717; Statute of 19 May 1998, Belgian Official Gazette, 7 August 1998, 25353; Statute of 24 June 2013, Belgian Official Gazette, 28 June 2013, 41263; Statute of 25 Dec. 2016, Belgian Official Gazette, 30 Dec. 2016, 91963.)

(ii) Under Belgian law, international treaties take precedence over national statutes; consequently, the provisions of the New York Convention take precedence over Belgian law to the extent the provisions of the New York Convention deviate from provisions of Belgian law.

(Source: Belgian Supreme Court, 27 May 1971, Pas., 1971, p. 886.)

C. Limitation periods (time limits)

6.

(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?

The new Belgian arbitration law (enacted by law of 24 June 2013), which is only applicable to arbitration proceedings commenced after 1 Sept. 2013, has introduced a time limit of 10 years following the communication of the arbitral award for the commencement of legal proceedings for recognition and enforcement of the award

(Source: Art. 1722, Judicial Code.)

Prior to the law of 24 June 2013, the Belgian Judicial Code did not provide for a specific limitation period applicable to the recognition and enforcement of foreign awards. Therefore, for arbitration proceedings commenced prior to 1 Sept.2013, the limitation periods applicable to judicial claims under Belgian law may be invoked against the recognition and enforcement of foreign awards in Belgium. No case law is available.

(Source: Arts. 2262 and 2262 bis, Civil Code.)

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

The ten-year time limit (Art. 1722 of the Judicial Code) starts running from the date on which the arbitral award is communicated to the parties.

For arbitrations commenced prior to 1 Sept. 2013, to which the ten-year time limit is not applicable:

(i) if Art. 2262 of the Civil Code applies (claims relating to immovable rights), the relevant limitation period is 30 years as from the date of the award.

(ii) if Art. 2262 bis Civil Code applies (rights in personam), the relevant limitation period is 10 years as from the date of the award, and different provisions apply in tort matters.

No case law is available as to the starting date of the limitation period for foreign awards.

D. National courts and court proceedings

7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?

(i) Since the reform of the arbitration law of 2013, the civil court of first instance (‘Rechtbank van Eerste Aanleg’/’Tribunal de Première Instance’) has jurisdiction over the recognition and enforcement of foreign awards.

(Source: Art. 1680.5 of Judicial Code as in force as from 1 Sept. 2013.)

For foreign arbitral awards rendered in arbitrations commenced after 1 Sept. 2013, the territorially competent court is – since the 2016 reform – the Court of First Instance of the Court of Appeal in the jurisdiction of the party against whom the enforcement is requested, based on its domicile or in the absence of a domicile, its usual place of residence or, where applicable, its registered office or, failing this, its place of business or branch office. If that party is neither domiciled in, or resident of, Belgium, nor has its registered office, place of business or branch office in Belgium, the application is made to the Court of First Instance of the seat of the Court of Appeal in the jurisdiction in which the award is to be enforced (as there are five Courts of Appeal in Belgium – in Brussels, Ghent, Antwerp, Liège and Mons – a Court of First Instance in one of these five cities will have jurisdiction).

(Source: Art 1720.2, Judicial Code.)

(ii) For arbitrations commenced prior to 1 Sept. 2013, the President of the civil court of first instance (‘Voorzitter van Rechtbank van Eerste Aanleg’/’Président du Tribunal de Première Instance’) in whose jurisdiction the person against whom enforcement is requested is domiciled or, in the absence of a domicile, is resident. If that person is neither domiciled nor resident in Belgium, the request is made to the President of the civil court of first instance where the award is to be enforced.

(Source: old Art. 1719.1, Judicial Code).

8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?

The petitioner must elect domicile in the jurisdiction of the civil court of first instance, i.e. the petition should state the address in Belgium to which all notifications to the petitioner should be made.

(Source: Art. 1720.1.1 of Judicial Code as amended in 2013 and slightly reformulated in 2016; old Art. 1719.3 of Judicial Code for the enforcement of arbitral awards rendered in arbitration proceedings commenced prior to 1 Sept. 2013.)

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

An exequatur request is dealt with at the unilateral request of one party and the party against whom enforcement is sought is not invited to submit its objections (i.e. ex parte proceedings).

(Source: Art. 1720.1.1, Judicial Code as amended in 2016; old Art. 1719.1, Judicial Code for the enforcement of arbitral awards rendered in arbitration proceedings commenced prior to 1 Sept. 2013.)

However, the court of first instance examines the petition and may, to this end, summon to chambers the petitioner and the party against whom enforcement is sought. The summons is sent by the office of the court.

(Source: Art. 1028, Judicial Code; old Art. 1719.5 of Judicial Code for the enforcement of arbitral awards rendered in arbitration proceedings commenced prior to 1 Sept. 2013; G. Keutgen and G.-A. Dal, with the collaboration of M. Dal and G. Matray, L’arbitrage en droit belge et international, t. 1, Le droit belge, (3rd Ed., 2015) p. 513 (nos. 616) and p. 578 (no. 712); C. Verbruggen, ‘Article 1720’, in N. Bassiri and M. Draye (Eds), Arbitration in Belgium (2016), p. 507, no. 15.)

According to part of the literature, if the court summons the respondent party to chambers, the decision is rendered upon an ex parte request and the party against whom enforcement is obtained may still file an objection against the enforcement decision within one month of its notification.

(Source: G. Keutgen and G.-A. Dal, with the collaboration of M. Dal and G. Matray, L’arbitrage en droit belge et international, t. 1, Le droit belge, (3rd Ed., 2015) p. 593 (no. 726).

This is, however, subject to discussion.

(Source: H. Van Houtte, K. Cox and S. Cools, 'Overzicht van Rechtspraak Arbitrage (1972-2006)', TBH/RDC (2007) p. 156, no 151; H. Boularbah, Requête unilatérale et inversion du contentieux (Larcier, 2015), p. 601, no. 845.)

10.

(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

(i) Since the 2013 reform of the Belgian arbitration law, no appeal is possible against the decision granting or denying recognition and enforcement of the award.

(Source: Art. 1720.1.1, Judicial Code as amended in 2013 and slightly reformulated in 2016.)

(ii) If the enforcement concerns an arbitral award rendered in arbitration proceedings commenced prior to 1 Sept. 2013, an appeal against the decision denying the enforcement of the arbitral award can be taken to the Court of Appeal within one month from the communication of the decision.

(Source: old Art. 1721, Judicial Code.)

The party against whom enforcement is sought can object to the enforcement decision within one month of the notification of the court decision (‘Verzet/‘Opposition’), on the grounds set forth in Art. 1721 of the Judicial Code.

(Source: Art. 1034, Judicial Code; old Art. 1722 of Judicial Code for the enforcement of arbitral awards rendered in arbitration proceedings commenced prior to 1 Sept. 2013.)

(iii) Recently, the Belgian Constitutional Court held that third parties that were not involved in the arbitration and whose rights were prejudiced by an arbitral award could file a third-party opposition (‘tierce opposition’) against the award pursuant to Art. 1122 of the Judicial Code (in the same way as such opposition can be filed by a third party against a court decision). As a consequence, and by virtue of Art. 1130 of the Judicial Code, the court that accepts the third-party opposition will only annul the effect of the award towards the third party. However, if the enforcement of the award would be incompatible with the enforcement of the annulment decision of the judge, then the third-party opposition will lead to the annulment of the award against all the parties.

(Source: Constitutional Court, 16 Feb. 2017, Case no. 21/2017, www.const-court.be.)

(b) How many levels of appeal or recourse are available against this decision?

(i) Since the reform of the Belgian arbitration law (by law of 24 June 2013), if the opposition against the enforcement decision is rejected, the party’s only recourse is to the Belgian Supreme Court pursuant to the general provision of Art 609.1 of the Judicial Code.

(ii) For arbitrations commenced prior to 1 Sept. 2013, there are three levels of recourse if the request for enforcement is granted and two levels of recourse if it is denied.

Where the request is granted, the first level of recourse is the filing of an objection in the civil court of first instance within one month of the decision being notified. Second, the decision of the civil court of first instance can be appealed to the court of appeal. Third, a decision of the court of appeal can be appealed to the Belgian Supreme Court on points of law. If the request is denied, only the second and third levels of appeal are available.

(Source: old Arts. 1721 and 1722 of Judicial Code for the enforcement of arbitral awards rendered in arbitration proceedings commenced prior to 1 Sept. 2013.)

11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?

A party may proceed with a conservatory attachment of the assets of its debtor on the basis of an arbitral award containing an order to pay.

(Source: Art. 1445 Judicial Code; C. Verbruggen, Op. Cit., p. 499, no. 9.)

As the enforcement of a foreign arbitral award is granted pursuant to an ex parte request, the decision is immediately enforceable unless the civil court of first instance decides to make enforcement subject to the provision of security or to suspend enforcement pending a recourse or an appeal.

(Source: Arts. 19, 1029 para. 2 and 1127, Judicial Code.)

E. Evidence required

12.

(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing the arbitration clause, affidavits, witness statements, etc.)?

(i) For arbitrations commenced after 1 Sept. 2013, the award must be supplied.

(Source: Art. 1720.4, Judicial Code, as amended by the law of 25 Dec. 2016.)

(ii) For arbitrations commenced prior to 1 Sept. 2013, the award and the arbitration agreement must be supplied.

(Source: old Art. 1719.4, Judicial Code for the enforcement of arbitral awards rendered in arbitration proceedings commenced prior to 1 Sept. 2013.)

(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only the arbitration clause)?

(i) Although not stated in the Judicial Code, it will be necessary to provide the award in its entirety.

(ii) For arbitrations commenced prior to 1 Sept. 2013, it is also required to provide the relevant pages of the document containing the arbitration clause.

(c) Are originals or duly certified copies required?

A duly authenticated copy is sufficient. The adequacy of the authentication is decided by the court. It may necessitate the full chain of authentification up to the ministry of foreign affairs, but this will not always be necessary.

(Source: Art. 1720.4, Judicial Code.)

(d) How many originals or duly certified copies are required?

The request with enclosing documents must be filed in two copies.

(Source: Art. 1720.4, Judicial Code; C. Verbruggen, Op. Cit. p. 507, no. 13.)

(e) Does the authority or court keep the originals that are filed?

No.

13.

(a) Is it necessary to provide a translation of the documents supplied?

Yes, Art. IV(2) of the New York Convention applies.

(b) If yes, into what language?

The language of the proceedings is subject to mandatory law in Belgium and is Dutch, French or German. The proceedings must be initiated in the language of the court handling the matter.

(Source: G. Keutgen, G.-A. Dal, Op. Cit. p. 579, no. 712.)

In the Brussels courts, the choice is between Dutch or French only; the respondent may under certain conditions request a change of language.

(Source: Statute 15 June 1935 on the use of languages in legal proceedings, Belgian Official Gazette, 22 June 1935.)

Documents provided as evidence or relied on may be in a language other than that of the proceedings, and the court will decide whether it understands them. As a precautionary measure, full or limited translations into the language of the proceedings may be submitted. A sworn translation is not mandatory if a party does not challenge the translation submitted by the other party.

(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?

Although Art. IV(2) of the New York Convention requires an official or sworn translation, Belgian Courts tend to find an informal translation of the documents to be sufficient. However, the court may request a translation by a sworn-in translator, if it considers it proper.

(Source; C. Verbruggen, Op. Cit. p. 507, no. 19.)

(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?

Yes, Art. IV(2) of the New York Convention applies. It is useful to (informally) check with the office of the civil court of first instance whether it is sufficient to translate only the relevant parts of the foreign arbitral award and/or the arbitration agreement/clause.

(Source: H. Van Houtte, E. Valgaeren, ‘De exequatur-procedure van arbitrage-uitspraken’, T.B.H., 1997, p. 278, no. 13.)

F. Stay of enforcement

14.

(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?

Under Belgian law, the decision on recognition and enforcement is made upon an ex parte request, and such decision is enforceable notwithstanding recourse and without security (ipso jure enforceability), except in the rare event of a denial of ipso jure enforceability by the civil court of first instance. Since 2013, the arbitration statute no longer explicitly states that a party can request the enforcement or annulment court to order a stay of the enforcement, but authors consider that this is still applicable. However, the judge deciding on attachment orders still has the power to stay the enforcement of the award.

(Source: Arts. 19, 1029 para. 2, 1127 and 1719.1, Judicial Code. Prior to 2013 (old Art. 1714.1, Judicial Code), it was explicitly stated that a party could request the enforcement or annulment court to order a stay of enforcement of the award.)

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

The court can suspend its decision as long as no signed award has been filed.

(Source: Art. 1721.2 Judicial Code, applicable since the 2013 reform.)

Pursuant to Belgian insolvency law, the enforcement of an award ordering the insolvent to pay an amount of money will be stayed for the duration of the insolvency proceedings.

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

Under the prior arbitration statute, it was explicitly stated that the court could order a stay of the enforcement upon the request of a party or condition the enforcement of the award upon the establishment of a security.

(Source: old Art. 1714.1, Judicial Code.)

Since 2013, the arbitration statute no longer explicitly provides for the provision of security, but authors consider that it should still be applicable.

(Source: G. Keutgen, G.-A. Dal, op. cit., p. 587, no. 720.)

G. Confidentiality

15.

(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?

No.

(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?

When the civil court of first instance hears the parties in chambers, the hearing is confidential.

(Source: Art. 1028, Judicial Code.)

However, in the event of an opposition against an enforcement decision, hearings in the resulting proceedings in the civil court of first instance and/or the Supreme Court are public. These hearings cannot be made confidential, except in extremely extraordinary circumstances, which are very unlikely to apply in international commercial arbitration.

(Source: Art. 148, para. 1, Belgian Constitution.)

(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (e.g. business or State secrets)?

Judgments are not public records in Belgium. The courts or one of the parties may take the initiative of sending a judgment to a law journal, which may ensure that names are abbreviated to first letters or replaced by X, Y, Z or similar.

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

Since 2013, the arbitration statute provides the possibility of provisional or conservatory measures being ordered by an arbitral tribunal and enforced by a court.

(Source: Art. 1697, Judicial Code.)

Regardless of the form in which the provisional or conservatory measure is ordered by the arbitral tribunal abroad (through an order or through an award), it can be recognised and enforced in Belgium.

(Source: G. Keutgen and G.-A. Dal, op. cit., p. 455, no. 559.)

17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?

There is nothing in Belgian law that prevents an arbitral award containing non-monetary relief from being recognized and enforced. Once recognized and enforced the bailiff is entitled to enforce the non-monetary relief.

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

The Belgian courts will not change the dictum of the award. In principle, recognition and enforcement is simply granted or rejected. However, if part of the award is held to be contrary to international public policy (e.g. means of enforcement contrary to public policy), recognition and enforcement of that part of the award may be refused.

(Source: G. Keutgen, G.A. Dal, Op. Cit., pp. 582–583 on domestic awards, combined with the general doctrine on nullity and the effects of nullity.)

19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?

Prior to the 2013 reform, the setting aside of an award by the competent authority referred to in Art. V(1)(e) of the New York Convention did not prevent the award from being recognized and declared enforceable in Belgium.

(Source: B. Hanotiau and O. Caprasse, ‘L’annulation des sentences arbitrales’, J.T. 2004, p. 413ff.)

Since the 2013 reform, Belgian arbitration law is based on the UNCITRAL Model law and it is no longer certain that an arbitral award which has been set aside at the seat of the arbitration outside Belgium can still be enforced in Belgium. According to authors, such award can no longer be enforced in Belgium

(Source: C. Verbruggen, Op. Cit. p. 525-526, no. 51.)

20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?

The enforcement of an award triggers a registration duty, to be paid by the debtor, of 3% of the amount in principal awarded in the arbitration.

(Source: Art. 148.1, Registration Duties Code, Y. Herinckx, ‘Droits d’enregistrement et sentences arbitrales: nouveaux développements’, b-Arbitra, 2014/2, 421; C. Verbruggen, op. cit. p. 501-502, no. 18.)

Country Rapporteur: Herman Verbist

Other Contributors: Luc Demeyere, Olivier Caprasse, Dirk De Meulemeester