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The European, Middle Eastern and African Arbitration Review 2016

Belgium

On 1 September 2013, a revised chapter 6 of the Judicial Code (from article 1676 to article 1722), comprising the Law on Arbitration (2013 Law on Arbitration),1 was developed. This revised version replaced its predecessor, which was initially adopted in 1972. The previous law was based on the Uniform Law on Arbitration provided in the European Convention, drafted by the Council of Europe in 1966. Belgium was the only state to ratify the Convention. For this reason, as opposed to a uniform and widespread law, the result was a rather isolated regime. Although the Belgian Law on Arbitration has been amended twice (in 1985 and 1998), national idiosyncrasies were abundant up until 2013. Last year, Belgium made a revolutionary step towards harmonising its legislation on arbitration with the adoption of the UNCITRAL Model Law (the Model Law).

The preparatory works mentioned that inspiration was drawn from the national arbitration laws of Germany, Switzerland and France.2 It is important to note that the 2013 Law on Arbitration brought the arbitration-related proceedings before the Belgian courts to a qualitatively new level. Previously, the role of the courts in such proceedings was heavily criticised. First, the 2013 Law on Arbitration aimed to align the arbitration-related proceedings in national courts with the contemporary arbitration-friendly ­international approach and to make it easier to grasp for foreign parties. The revisions to the provisions on the setting aside of an award, challenges to arbitrators proceedings and interim measures are the most notable developments. Second, the revisions attempted to accelerate the overall duration of proceedings by, inter alia, removing an appeal procedure at the Court of Appeal in annulment proceedings and allowing only ‘cassation’ to the Supreme Court.

In addition, on 1 January 2013, the Belgian Centre for Mediation and Arbitration (CEPANI) adopted new Arbitration Rules and new Mediation Rules. The 2013 Rules on Arbitration and Mediation have undergone substantial revision and were inspired by the 2012 ICC arbitration rules.

The 2013 Law on Arbitration: important changes

If the seat of the arbitration is in Belgium, the 2013 Law on Arbitration applies to domestic and international arbitration proceedings that commenced from 1 September 2013, irrespective of the parties’ nationality. The previous Law on Arbitration (the Previous Law) remains applicable to arbitration proceedings introduced prior to 1 September 2013.

There are fewer grounds for setting aside an award

When including an arbitration clause in a contract, parties aim to provide for an expeditious and final dispute resolution method. If an award is challenged, it may take a long time before a party receives its awarded relief. Generally, the more peculiar the regime for challenges to an award at the seat of arbitration, the longer it will take to receive the relief. Hence, businesses avoid jurisdictions where they risk drowning in protracted legal battles in national courts. The Belgian law on setting aside proceedings traditionally diverted from article 34 of the Model Law. More grounds for challenge and a potential three-tier procedure were among unfortunate differences. Following the revision, provisions for challenges to an award were significantly amended to correspond as much as possible with the UNCITRAL regime. According to the preparatory works, German, Spanish and Austrian arbitration laws were used to serve as an example for the regulation of setting-aside proceedings.3

The following grounds are now excluded by the 2013 Law on Arbitration:

  • if an award contains conflicting provisions (former article 1704.2 (j));
  • if the formalities prescribed in article 1701.4 have not been fulfilled (former article 1704.2 (h)) (article 1701.4 required that an award shall be set down in writing and signed by the arbitrators);
  • if an award is based on false evidence (former article 1704.3 (b)); or
  • if one of the parties withholds a crucial piece of evidence (former article 1704.3 (c)).

However, the legislator still included three grounds for challenge in addition to the approach provided by the Model Law:

  • an award does not state reasons (article 1717.3 (a), (iv) of the 2013 Law on Arbitration);
  • an arbitral tribunal has exceeded its powers (article 1717.3 (a), (vi) of the 2013 Law on Arbitration); or
  • an award was obtained by fraud (article 1717.3 (b), (iii) of the 2013 Law on Arbitration).

As in the Model Law, article 1717.2 of the 2013 Law on Arbitration provides that the listed grounds for challenge are exclusive.

An award must contain reasons but contradictory provisions in an award are no longer grounds for annulment

The duty to state reasons is an essential feature of the jurisdictional mission for Belgian judges. Likewise, an arbitral award rendered in Belgium may be challenged if it fails to state the reasons on which it is based. This ground distinguishes Belgian arbitration law from the Model Law. In the preparatory works, the legislator explains that the motivation in an award is a requirement of domestic public policy. However, it does not prevent the recognition of an award that does not state reasons in Belgium if the motivation is not required under the law applicable to proceedings.4Additionally, according to the UNCITRAL 2012 Digest of Case Law on the Model Law, ‘court decisions differ as to whether the failure to provide reasons constitutes or not, on its own, a ground for setting aside (or refusing to enforce) an award’. At the same time, the digest explains that, in general, ‘courts have rejected the view that the reasons given in an award must meet the standard applicable to court judgments’. Thus, generally, a lower threshold prevails: ‘the arbitral tribunal should state the facts and explain succinctly why, on the basis of such facts, the decision was rendered’.5 For a Belgian legislator, the failure to state reasons is also interconnected with another commonly recognised ground for challenge: excess of mandate by an arbitral tribunal. The digest explains that connection as: ‘the failure of the arbitral tribunal to give any reasons seriously hampers a party’s ability to determine if the award dealt with a dispute beyond the terms of submission’.6 However, according to a recent decision of a Court of First Instance (Brussels) the requirement for an arbitral award to contain reasons is still a formal requirement and not a substantive one.7 When deciding in an annulment procedure, it is not within a judge’s competence to evaluate the reasoning of an arbitral award.

An important change is that the 2013 Law on Arbitration abolished a ground that was a subject of controversy for a long time. Under the Previous Law, an arbitral award could also be set aside if it contained contradictions in its provisions. The common rationale for annulment in such cases was that a contradictory award is not reasoned. This is because contradictory reasons are equivalent to no reasons at all. However, it was largely debated whether it includes the entire motivation or only an operative part of award. In 2011, the Belgian Supreme Court in Havas & Euro RSCG Worldwide v Dentu Inc (C.10.0302.F/1) ruled that a contradiction in the award’s reasoning might form a basis for annulment. Moreover, according to the Supreme Court, in such cases a judge is not required to check whether the decision is otherwise justified. Pursuant to the 2013 Law on Arbitration, the presence of contradictory provisions in an award is no longer a ground for annulment. Thus, that puts an end to that debate. Likewise, courts and doctrine in other jurisdictions have also rejected the notion that awards may be annulled because they are internally inconsistent (eg, in France, Sweden and the US).

Remission

Article 1717.6 of the 2013 Law on Arbitration corresponds to article 34, paragraph 4 of the Model Law and provides an option to ‘save’ an award (ie, the court has the option to remit the case to the arbitral tribunal to eliminate the ground for annulment). According to the Belgian legislator, the interests of efficiency dictate such an option and the annulment of an award should remain the ultimate remedy. If an irregularity can be corrected by a new intervention of the arbitral tribunal, it is preferable to use this procedure.8

The double degree of jurisdiction for annulment proceedings is removed

The overall duration of the annulment proceedings was heavily criticised. The possibility to appeal a court’s decision on an annulment claim often led to protracting proceedings for several years. The 2013 Law on Arbitration abolished the double instance of appeal. Pursuant to article 1717.2 of the 2013 Law on Arbitration, annulment proceedings will be conducted before the Court of First Instance, with no possibility to go to the Court of Appeal. It is only possible to file an application for ‘cassation’ to the Supreme Court.

The possibility to renounce in advance to request setting aside of an arbitral award

Like under the Previous Law, according to article 1718 of the 2013 Law on Arbitration, non-Belgian parties without any link to Belgium may waive in advance the option to challenge an award rendered in Belgium. The Model Law does not contain such a provision. This provision finds its equivalent in article 192, paragraph 1 of the Swiss Federal Act on Private International Law and in article 51 of the Swedish Arbitration Act of 1999. Interestingly, between 1985 and 1998, Belgium had a provision that abolished all rights to seek annulment of awards made in Belgium between parties. This rule was met with scepticism and the law was amended.

Recognition and enforcement of arbitral awards

Aside from adopting all grounds for refusing recognition or enforcement listed by the Model Law, the 2013 Law on Arbitration kept two additional grounds: lack of reasons on which an award is based, and the excess of mandate by an arbitral tribunal. Important clarification was added to the former ground. Article 1721.1(a)(iv) of the 2013 Law on Arbitration expressly provided that the court refuses the recognition or enforcement of an award if it lacks reasons when such reasons are mandatory pursuant to the law applicable to arbitration proceedings. This is expected to put an end to the unfortunate application of that ground when the court has refused enforcement of the award that did not contain any motivation, notwithstanding that the absence of motivation was expressly provided for in the arbitration clause.9

It is worth noting that when enforcing an award in Belgium, whether foreign or local, a registration duty of 3 per cent should be paid. The duty is payable by both parties, jointly.10

Importantly, article 1722 of the 2013 Law on Arbitration provides that the enforcement of an arbitral award is barred after a period of 10 years commencing from the date on which the arbitral award was communicated.

Challenges of arbitrators

Inspired by article 13 of the Model Law, the legislator has made a number of important amendments to the section regulating challenges of arbitrators. Many practitioners have criticised the challenge proceeding against an arbitrator for their length and confusing case law. The most notorious example is the case Republic of Poland v Eureko and Stephen M Schwebel, in which arbitration was suspended for two years because the Republic of Poland challenged an arbitrator.11

The Previous Law did not provide for a summary proceeding in case of challenge against an arbitrator. However, it provided for an annulment procedure with the Court of the First Instance and then for an appeal to the Court of Appeal, which contributed even further to the delays. This system was applicable even in institutional arbitration.12 It was not at the discretion of the institution to examine the challenge against an arbitrator, but it was reserved to the competence of a state court. Article 1687 of the 2013 Law on Arbitration expressly provided that the parties are free to agree on the procedure applicable to the challenge of arbitrators. For example, parties may agree on that by reference to a set of arbitration rules.

Article 1687.2(b) of the 2013 Law on Arbitration also states that, in the absence of the parties’ agreement on the procedure for a challenge against an arbitrator, the president of the Court of the First Instance should decide on a challenge acting as in summary proceedings. The president’s decision cannot be appealed. While the challenge is pending, the arbitration may continue and the tribunal may even render an arbitral award. The legislator explains that the rationale of that provision is to prevent the use of challenge against an arbitrator as a dilatory tactic and to ensure efficiency of arbitration. Additionally, the president has the jurisdiction to decide issues on the appointment or replacement of an arbitrator, to set a time limit for the arbitrator to render the arbitration award and to take necessary measures for collecting evidence (article 1680.2 of the 2013 Law on Arbitration).

Interim measures

Pursuant to article 1691, the arbitral tribunal may order any interim or conservatory measures it deems necessary, except for attachment orders that remain within the exclusive jurisdiction of the state courts. Also, parties may agree to exclude or limit the possibility for arbitrators to decide on interim or protective measures. The 2013 Law on Arbitration aimed to bring the regulation of interim measures in line with the relevant part of the Model Law as amended in 2006. However, the 2013 Law on Arbitration still maintains some differences with the Model Law. For example, it does not provide a general definition of interim measures or set out the detailed conditions for granting interim measures, giving the discretion to the arbitral tribunal. As the preparatory works explain, the incorporation of the list of conservatory measures and the conditions for granting them was considered too rigid. The legislator was concerned that it would restrict current flexibility and impede the work of arbitrators.13 Thus, for the sake of flexibility and efficiency, it was deemed necessary to keep the traditional Belgian approach and give the tribunal wide discretion on these matters.14

In addition, unlike the Model Law, the 2013 Law on Arbitration does not empower an arbitral tribunal to render attachment orders ex parte. The Belgian legislator explained that it is more effective to request this measure from the president of the Court of First Instance according to article 584.3 of the Belgian Judicial Code since the implementation of such orders rendered by arbitrators may be problematic. Also, the preparatory works point out that, if an arbitrator is given such powers, it might appear inconsistent with the consensual nature of arbitration. It may also jeopardise the independence of an arbitrator and the right of defence.15

On the other hand, articles 1692 to 1695 of the 2013 Law on Arbitration correspond to articles 17 D, E, F and G of the Model Law. The key principles and rules contained in these provisions have already existed under Belgian law, although they were not specific to arbitration. Thus, the legislator explains that the inclusion of such provisions adds valuable clarification to foreign colleagues and plays an educational role.

Another notable clarification is the provision contained in article 1696.1 stating that interim measures ordered by an arbitral tribunal shall be recognised as binding and shall be granted enforcement by the Court of First Instance. In Belgium, unlike in some other countries, it is recognised that interim measures ordered by an arbitral tribunal are enforceable. Thus, the express provision regarding the recognition and enforcement of interim measures provides useful information to foreign practitioners and to those unfamiliar with the Belgian law. It should also be noted that article 1696 allows for the recognition and enforcement of the decision on interim measures irrespective of whether the decision was adopted in the form of an award or in any other form.

Arbitrability

Article 1676 of the Previous Law was often considered ambiguous with regard to the disputes that can be submitted to arbitration. Although the 2013 Law on Arbitration still does not provide a list of non-arbitrable disputes, it introduces a revised criterion of arbitrability. Pursuant to the 2013 Law on Arbitration, any dispute of a pecuniary nature can be subjected to arbitration. Non-pecuniary matters may also be subject to arbitration proceedings if it is legally permitted to settle the matter by arbitration. As the preparatory works explain, the Belgian legislator followed the example of the Swiss law (article 177, paragraph 1, PILA) and the German law (article 1030, (1), ZPO).16 For instance, article 177, paragraph 1 of the Swiss Law provides: ‘Any dispute involving financial interests can be the subject matter of arbitration.’ The Swiss Federal Court has interpreted it as a very broad notion involving all claims that present, at least for one party, an interest that can be assessed in monetary terms.

Restrictions on the arbitrability of certain types of disputes shall be clearly provided by specific legislation. Pursuant to article 1676.5 of the 2013 Law on Arbitration, arbitration agreements in respect of the disputes belonging to the jurisdiction of the labour courts, without prejudice to the exceptions provided by law, shall be automatically null and void if concluded prior to the moment the dispute arises. Within the area of intellectual property, the Act on Patents, dated 28 March 1984, excludes disputes relating to mandatory licences from arbitration. Article 577.4 of the Belgium Civil Code on the mandatory co-ownership of buildings or groups of buildings considers any clauses in the regulations of the building that empower one or more arbitrators to resolve disputes regarding application of that section as void.

Under article 4 of the Belgian Law dated 27 July 1961 on Unilateral Termination of Exclusive Distribution Agreements of Indefinite Duration (the Law of 1961), if an exclusive distributor has suffered damage further to the unilateral termination of a distribution agreement effective within all or part of Belgian territory, he or she may always initiate legal proceedings before the courts of Belgium. In such cases, the courts must apply Belgian law exclusively. Article 6 of the Law of 1961 adds that the provisions of the Law will prevail over any contrary stipulations of the parties, agreed upon prior to contract termination.

On 3 November 2011, the Belgian Supreme Court upheld the decision of the Brussels Court of Appeal. The Court of Appeal found the arbitration provision in the commercial agency agreement providing for the resolution of all disputes under Quebec law null and void because the protection of commercial agents under the chosen law was not equivalent to the contained in the Belgian Law. This contradicted the provisions of the Council Directive of 18 December 1986 on the coordination of the laws of the member states relating to self-employed commercial agents (86/653/EEC), implemented by Belgium in 1995.

Evidentiary rules

Unlike article 27 of the UNCITRAL Model Law, article 1708 of the 2013 Law on Arbitration does not permit the arbitral tribunal to request a state court to assist in taking of evidence. According to the Belgian provision, only a party may file such a request.

Pursuant to article 1680 of the 2013 Law on Arbitration, the president of the Court of First Instance is competent to take all necessary measures for the taking of evidence in summary proceedings (in accordance with article 1709). This decision cannot be appealed.

No writing requirement for a valid arbitration agreement

Previously, article 1677 provided that an arbitration agreement shall be constituted in writing. Article 1681 of the 2013 Law on Arbitration mirrors the second option of article 7 of the Model Law, which defines the arbitration agreement in a manner that omits any formal requirement. Hence, an arbitration agreement does not have to be concluded in writing in order to be valid under Belgian law. That means that an oral arbitration agreement is valid as long as it can be proven. The preparatory works provide that witness testimonies can serve as proof.17

2013 Standard Dispute Rules adopted by the Institute of Arbitration

The Institute of Arbitration (the Institute) is a neutral and independent non-governmental organisation. One of its distinguishing features is that an arbitral award can be appealed within the Institute before another arbitral tribunal. The 2013 Standard Dispute Rules (SDR) aim to make arbitration accessible to all European citizens and their companies. The main changes adopted by the 2013 SDR concern two areas: the powers of the tribunal and the competence of the Secretariat.

As to the powers of the tribunal, the most notable development is that, under article 6 of the 2013 SDR, the arbitral tribunal is expressly given powers to propose mediation. This provision aims to open a door for Arb-Med proceedings. Article 9 of the SDR now also explicitly mentions that the settlement agreement is included in the award. This contributes even further to the promotion of mediation and demonstrates the modern approach towards alternative dispute resolution taken in Belgium. Another change incorporated by part IV.3 concerns the requirement for arbitrators to reduce their fees if they declare themselves incompetent or for a default award in the first instance.

Chapter VI adds an option for an ad hoc arbitration that clearly provides that the Institute of Arbitration may be entrusted with the tasks of the clerk’s office or the appeal level. One of the services that can be requested from the Institute is the translation of an award if the arbitration is in a country with a language other than one of the proceedings. The official version of the SDR is now available in five languages, including Portuguese.

CEPANI 2013 Arbitration and Mediation Rules

The Belgian Centre for Mediation and Arbitration (CEPANI) adopted new Arbitration Rules and new Mediation Rules that came into force on 1 January 2013.18 The new Rules have undergone a substantial revision and were inspired to a big extent by the 2012 ICC arbitration rules. The most significant innovations concern the inclusion of provisions on multiparty and multi-contract arbitration, joinder and consolidation, reviewed provisions on interim and conservatory measures, and the liability of CEPANI and the arbitrators.

The 2013 Rules provided that arbitration can take place between more than two parties and claims arising out of various contracts can be brought in a single arbitration (articles 9-10). Intervention of a third party is also possible provided for if the arbitral tribunal has not yet been appointed or confirmed (article 11). When multiple arbitrations are related or indivisible, the parties or the arbitral tribunal can request CEPANI to order consolidation (article 13).

Furthermore, according to article 26 of the 2013 Rules, it is now possible to request interim and conservatory measures before the tribunal is constituted. CEPANI will appoint an emergency arbitrator within two days after the request and the arbitrator will render an award within 15 days. The emergency arbitrator cannot be appointed as arbitrator in the proceedings on the merits and the award on the interim and conservatory measures will not bind the tribunal.

Additionally, article 37 of the 2013 Rules provides for a limitation of the liability of the arbitrator. Liability is excluded for an act or omission when a tribunal is carrying out their functions of ruling on a dispute (with the exception of fraud). For any other act or omission by the arbitrator or the CEPANI, liability can incur in cases of gross negligence or fraud.

Finally, another important initiative of CEPANI is the launch of b-Arbitra in May 2013. b-Arbitra is the Belgian Review of Arbitration that welcomes contributions in English, as well as in Belgium’s three official languages: Dutch, French and German. It aims, inter alia, to provide a dynamic forum for the exchange of information on a European scale.

The Ping An v the Belgian government

On 30 April 2015, ICSID issued an Award declining its jurisdiction over claims against the government of Belgium by two Chinese investor’s, Ping An Life Insurance, Limited and Ping An Life Insurance, Group.19 This case was the first ICSID case ever against the Belgian State. Ping An acquired Belgian bank Fortis’ shares, which suffered severe losses in the end as a result of the economic crisis. The investor argued that Belgium failed to properly regulate its banking sector, forcing Fortis to accept a bail-out at a reduced price. In July 2012, after an unsuccessful attempt to compel Belgium to file a notice of dispute on the basis of the 1986 BIT, the Ping An agreed to commence arbitration under the ICSID on the basis of the new 2009 BIT.

The main question before the Tribunal was whether the wording of article 8(1) of the 2009 BIT concerning the consent to ICSID arbitration, in case ‘a legal dispute arises’, extends to disputes that arose prior to the BIT coming into force. The tribunal preliminarily excluded the presence in arbitration practice of a presumption that the jurisdiction of a tribunal extends to disputes which arose prior to its establishment. It also found that there was no justification for extending the 2009 BIT to disputes arising before it, as both BITs provided for different scope of dispute resolution (the 1986 BIT with a narrower dispute mechanism, the 2009 BIT with a wider mechanism). Ping An has notified the Belgian governments of its breaches of the 1986 BIT provisions before the 2009 BIT entered into force. In light of the above, the tribunal concluded that the 2009 BIT could not extend to disputes arising before its entry into force in relation to previous substantive provisions and declined its jurisdiction. With a number of questions left open by this Award there is a high probability of establishing a new dispute resolution proceeding, either by the investor himself or in a state-to-state claim.

Ad hoc Arbitration under the UNCITRAL Rules between the Energoalians SARL and the Republic of Moldova, Arbitral Award rendered on 25 October 2013 with a dissenting opinion on jurisdiction issued by the tribunal Chair

Claimant Energolians tried to enforce this arbitral decision before the Belgian courts by seizure of the assets belonging to respondent Republic of Moldova with Eurocontrol. The Republic of Moldova and Moldatsa opposed the enforcement of the Award in Belgium in application of the New York Convention regarding the enforcement of Awards before the court of first instance. The court took the declaration of Eurocontrol into consideration and decided that Energoalians could not enforce the arbitral decision against a third party, even if that party has strong relations with the State.

Supreme Court decisions

In 2014, there were several important Supreme Court decisions concerning arbitration issues. In the decision from 13 March 2014, the Supreme Court concluded that the Law of 1 April 1976 relating to vertical integration in the sector of animal fats, which is a mandatory law, does not exclude arbitration, provided that the arbitration agreement is concluded between the parties after the dispute has arisen.20

On 12 September 2014, the Supreme Court rendered its long awaiting decision in the Unamar case (C.11.0430.N).21 This case might have some important implications for the arbitrability under Belgian distribution law and the validity of arbitration agreements. To which extent may the EU member states impose the application of their own mandatary rules in intra EU cases where the parties to a contract have choosen the law of another member state (here in this case Bulgaria) as the applicable law and this law provides the minimum guaranties required by the Directive 86/653. Earlier, the Court of Justice decided in this case that only if the court before which the case has been brought finds, on the basis of a detailed assessment, that, in the course of that transposition, the legislature of the state of the forum held it to be crucial, in the legal order concerned, to grant the commercial agent protection going beyond that provided for by the directive, taking account in that regard of the nature and of the objective of such mandatory provisions.

It was now waiting for the decision of the Belgian Supreme Court. The Supreme court annulled the Court of Appeal judgment for lack of such due justification. In doing so, it refers to the ECJ’s dictum, in full, followed by the conclusion that the Court of Appeal has not duly justified its decision. In other words, paraphrasing the ECJ, there was no ‘detailed assessment, that, in the course of that transposition, [Belgium] held it to be crucial, in [its] legal order, to grant the commercial agent protection going beyond that provided for by the directive’. The case will be brought before the Brussels Court of Appeal.

The decision of the Supreme Court from 28 November 2014 underlined that the control on the obligation to motivate an arbitral award in the annulment proceeding cannot amount in the control of the value of the content of the motivation (as under article 149 of the Constitution); the fact that a statement is untrue does not constitute a breach of article 1704, 2°, i) Judicial Code (1).22

Other recent case law

Belgian courts have made a number of decisions concerning arbitration by laying out the basic features of arbitration proceedings, the role of an arbitrator, the interactions between the parties and other issues.

Court of Appeal Brussels 2 June 2015

The party’s (tacit) acceptance of a final arbitral award does not make the later annulment proceedings inadmissible but makes such a claim without subject. Such an acceptance of a final arbitral award does also have consequences on the pending annulment proceedings against the former interim arbitral award if this former award is inextricably linked to the final arbitral award. The party accepting the final arbitral award does consequently also accept the former arbitral interim award making its former annulment proceedings against the former interim award unfounded.

In the decision from 26 May 2015, the Brussels Court of First Instance23 underlined that a CEPANI agreement between an arbitrator and a party concerned does not turn CEPANI into a third party. An arbitrator is by no means an executioner of the CEPANI under such an agreement. Another decision from 28 May 2015 concerned the necessity of having a contradictory debate in an arbitration proceeding, the absence of which was the ground for setting aside the respective arbitral award.24 Another decision dealt with the consequences of violation of the right of self-defence in arbitration proceedings.25 In the decision from 30 April 2015, the judge ruled on the importance of a party asking for deferral on time.26

Belgian Law against ‘vulture funds’

On 1 July 2015, Belgian parliament adopted new legislation in a fight against so-called vulture funds, which are investment companies buying sovereign defaulted debts for bargain prices in order to sue the indebted countries for full repayment.27 The law is directed against the enforcement of these claims on the territory of Belgium with the main purpose of preventing these funds from seizing any property of countries in peril. One of the cases that gave rise to this legal initiative was NML Capital Management v. the Argentine Republic,28 in which the company demanded Argentinian accounts to be frozen in Belgium.

The new law sets out the framework of how to identify a ‘vulture fund’ or, within the wording of the law, ‘illegitimate advantages’ of a creditor. The judge has to identify ‘a manifest disproportion between the amount claimed by the creditor and national face value of the debt.’ If a judge is confronted with a vulture fund, which claims to get the full value of the bonds it acquired, the maximum that it gets is the discounted amount the company actually paid for the bonds. Belgium is not the first country to adopt a clear anti-vulture fund position. In 2010, the United Kingdom has also adopted new legislation on this matter. However, although Belgium and the United Kingdom sent clear signals with their legislation, a multilateral action towards curtailing the harmful functioning of vulture funds is required.

Notes

  1. Document 005, Texte Adopte, dated 16 May 2013, available at www.lachambre.be/kvvcr/showpage.cfm?section=/flwb&language=fr&rightmenu=right&cfm=/site/wwwcfm/flwb/flwbn.cfm?lang=F&legislat=53&dossierID=2743. English Translation available at www.cepani.be/en/arbitration/belgian-judicial-code-provisions.
  2. Document 003 (No. 53-2743/003), ‘Rapport fait au nom de la commission’, Stefaan De Clerck, dated 8 May 2013, p8, available at www.lachambre.be/kvvcr/showpage.cfm?section=/flwb&language=fr&rightmenu=right&cfm=/site/wwwcfm/flwb/flwbn.cfm?lang=F&legislat=53&dossierID=2743.
  3. Document 001 (No. 53-2743/001), Dépôt, dated 11 April 2013, p.40, available at www.lachambre.be/FLWB/pdf/53/2743/53K2743001.pdf.
  4. Ibid.
  5. Ibid, p.158.
  6. The UNCITRAL 2012 Digest of Case Law on the Model Law, p.154, available at www.uncitral.org/pdf/english/clout/MAL-digest-2012-e.pdf.
  7. Decision of the Brussels Court of First Instance, dated 28 January 2015, Judgement No. 35, 4 Chamber, AR/2014/7806/A.
  8. Document 001 (No. 53-2743/001), Dépôt, dated 11 April 2013, p41, available at www.lachambre.be/FLWB/pdf/53/2743/53K2743001.pdf.
  9. Decision of the Brussels Court of First Instance dated 30 March 2011, RDC, 2012/2, pp.186-189. See also C Verbruggen, ‘Le refus d’exequatur d’une sentence arbitrale étrangère dépourvue de motivation’, RDC, 2012/2, p.189 et seq.
  10. See more in Yves Hendrix, ‘Droits d’enregistrement et sentence arbitrales’, b-Arbitra, 2013/2 who examines the situation where the winner, who has had to pay the registration duty, seeks recovery of such duty against the debtor.
  11. Brussels Court of Appeal of 29 October 2007, RG 2007/AR/70.
  12. Court of Appeal of Brussels, 21 June 2005, RG 2004/AR/3106, unreported.
  13. Document 001 (No. 53-2743/001), Dépôt, dated 11 April 2013, p.24, available at www.lachambre.be/FLWB/pdf/53/2743/53K2743001.pdf.
  14. ...’prendre toute mesure provisoire ou conservatoire qu’il juge nécessaire en ce qui concerne l’objet du différend’, Ibid.
  15. Ibid, pp.24-25.
  16. Document 001 (No. 53-2743/001), Dépôt, dated 11 April 2013, p.9, available at www.lachambre.be/FLWB/pdf/53/2743/53K2743001.pdf.
  17. Document 001 (No. 53-2743/001), Dépôt, dated 11 April 2013, p.15, available at www.lachambre.be/FLWB/pdf/53/2743/53K2743001.pdf.
  18. Available at www.cepani.be/EN/Default.aspx?PId=861.
  19. Ping An Life Insurance Company, Limited and Ping An Insurance (Group) Company, Limited v. The Government of Belgium, Award (dated 30 April 2015), ICSID Case No. ARB/12/29.
  20. Decision of the Supreme Court, dated 13 March 2014, C.13.047.N.
  21. Decision of the Supreme Court, dated 12 September 2014, C.11.0430.N.
  22. Decision of the Supreme Court, dated 28 November 2014, C.12.0514.N.
  23. Decision of the Brussels Court of First Instance, dated 26 May 2015, 22 Chamber, AR. 2014/1361/A.
  24. Decision of the Brussels Court of First Instance, dated 28 May 2015, Judgement No. 144, 4 Chamber, AR 14/2494/A.
  25. Decision of the Brussels Court of First Instance, dated 4 February 2015, Judgment No. 44, 4 Chamber, AR/13/9884/A.
  26. Decision of the Brussels Court of First Instance, dated 30 April 2015, Judgment No. 131, 4 Chamber, AR/2014/5133/A.
  27. Document 005 (No. 54-1057/005) Dépôt, dated 1 July 2015, available at www.lachambre.be/FLWB/PDF/54/1057/54K1057005.pdf
  28. NML Capital, Ltd. v. Republic of Argentina, 134 S. Ct. 2250, 189 L. Ed. 2d 234 (2014).