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Copyright © International Chamber of Commerce (ICC). All rights reserved.
( Source of the document: ICC Digital Library )
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
2. Date of entry into force of the New York Convention
16 November 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:
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.
(b) commercial relationships?
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?
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. 1719-1723 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.
(Sources: cf. Civ. Brussels, 3 Nov. 1987, J.L.M.B., 1987, 1490; Court of Appeal, Brussels, 6 Dec. 1988, Y.B. Comm. Arb. XV, 1990, 370.)
(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)
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
The Judicial Code does not state a specific limitation period applicable to the recognition and enforcement of foreign awards under Belgian law. However, 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: Civil Code, Arts. 2262 and 2262 bis.)
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
If Art. 2262 applies (claims relating to immovable rights), the relevant limitation period is 30 years as from the date of the award. If Art. 2262 bis 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 available as to the date triggering the start 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?
The president of the civil court of first instance (Voorzitter van de Rechtbank van Eerste Aanleg/Président du Tribunal de Première Instance) has jurisdiction over the recognition and enforcement of foreign awards.
(Source: Judicial Code, Art. 1719.1.)
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 claim should be brought before the president of the civil court of first 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: Judicial Code, Art. 1719.2.)
The petitioner shall 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: Judicial Code, Art. 1719.3.)
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The request is filed <italic>ex parte</italic>.
However, the president of the court 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: Judicial Code, Art. 1719.5.)
If the president of the court summons the parties to chambers, a decision rendered upon an <italic>ex parte</italic> request is made, so the party against whom enforcement is obtained may still file an objection against the enforcement decision within one month of its notification.
(Source: Judicial Code Art. 1722.)
Within five days of being rendered, the decision of the president of the court is notified to the petitioner by the office of the court.
(Source: Judicial Code, Art. 1720.)
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
(b) How many levels of appeal or recourse are available against this decision?
Three, if the request for enforcement is granted; two, 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.
(Source: Judicial Code, Art. 1722.)
If the request is denied, only the second and third levels of appeal are available.
(Source: Judicial Code, Art. 1721.)
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)?
As the enforcement of a foreign arbitral award is granted pursuant to an <italic>ex parte</italic> request, the decision is immediately enforceable unless the president of 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: Judicial Code, Art. 1029, 2d para.)
E. Evidence required
(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.)?
The request must be accompanied by (i) the award and (ii) the arbitration agreement.
(Source: Judicial Code, Art. 1719.4.)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only the arbitration clause)?
Although not stated in the Judicial Code, it will be necessary to provide: (i) the relevant pages of the document containing the arbitration clause and (ii) the award in its entirety.
(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.
(d) How many originals or duly certified copies are required?
One original or one duly authenticated copy.
(e) Does the authority or court keep the originals that are filed?
(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, L'arbitrage en droit belge et international, t. 1, Le droit belge (2006) p. 513, no. 616.)
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)?
Yes, Art. IV(2) of the New York Convention applies.
(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, Article IV(2) of the New York Convention applies. It is useful to (informally) check with the office of the president 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
(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 president of the civil court of first instance.
(Sources: Judicial Code, Art. 1719.1; Judicial Code, Art. 1029, 2d para.)
At a later stage of the proceedings, if any, and depending on whether recognition and enforcement is granted or refused, the competent Belgian court may take into account an application to set aside or suspend the foreign award pending before the competent foreign court.
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
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?
No. If recognition and enforcement has been granted as a result of an ex parte request under Art. 1719.1 of the Judicial Code, no provision of security can be ordered.
(Sources: Court of Appeal of Brussels, 14 April 1999, R.H.A. 1999, 303; B. Hanotiau & B. Duquesne, 'L'exécution en Belgique des sentences arbitrales belges et étrangères', J.T. 1997, p. 306; no. 9; M. Storme & M. Voordeckers, 'Overzicht van Belgische rechtspraak, Arbitrage 1989-2005, T.P.R. 2005, p. 1311, no. 96; H. Van Houtte, K. Cox & S. Cools, 'Overzicht van rechtspraak: Arbitrage (1972-2006)', T.B.H. 2007, p. 157, no. 156.)
(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?
(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 president of the civil court of first instance hears the parties in chambers, the hearing is confidential.
However, in the event of an objection to or an appeal against an enforcement decision, hearings in the resulting proceedings in the civil court of first instance, the court of appeal 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: Belgian Constitution, Art. 148, 1st para.)
(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?
Belgian law does not contain any provisions relating to interim and partial (foreign) awards.
It is possible to apply for recognition and enforcement of these, as of any other awards.
(Source: G. Keutgen & G.-A. Dal, L'arbitrage en droit belge et international, t. 1, Le droit belge (2006) p. 385, no. 481.)
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, L'arbitrage en droit belge et international, t. 1, Le droit belge (2006) pp. 517-18 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?
The setting aside of an award by the competent authority referred to in art. V(1)(e) of the New York Convention does not prevent the award from being recognized and declared enforceable in Belgium.
(Source: B. Hanotiau & O. Caprasse, 'L'annulation des sentences arbitrales', J.T. 2004, p. 413ff.)
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.)?
When the enforcement decision is registered by the competent body, a registration tax of 3% of the amount to be paid is levied.
(Source: D. Matray, J.-L. Dacsotte & F. Remacle, 'Conséquences fiscales des sentences arbitrales en particulier en ce qui concerne les clauses de garanties de passif' in Arbitrage et Fiscalité, (Brussels: Bruylant, 2001) p. 84, no. 9.)
Luc Demeyere, Olivier Caprasse, Dirk De Meulemeester